Consolidation, Merger, Sale or Purchase of Assets, etc. Each of the Credit Parties will not, nor will it permit any Subsidiary to, (a) dissolve, liquidate or wind up its affairs, sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted: (i) the sale, transfer, lease or other disposition of inventory and materials in the ordinary course of business (ii) the sale, transfer or other disposition of cash and Cash Equivalents; (A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds; (iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor; (v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party; and (vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that, in the case of clauses (i), (ii), (iii) and (vi) above, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold; or (b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property and equipment in the ordinary course of business, except as otherwise limited or prohibited herein) or (ii) enter into any transaction of merger or consolidation, except for (A) investments or acquisitions permitted pursuant to Section 6.5, and (B) the merger or consolidation of a Credit Party with and into another Credit Party; provided that if the Borrower is a party thereto, the Borrower will be the surviving corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Each of the Credit Parties Holdings will not, nor and will it not permit any Subsidiary of its Subsidiaries to,
(a) dissolve, wind up, liquidate or wind up dissolve its affairsaffairs or enter into any transaction of merger or consolidation, or convey, sell, transfer, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of than inventory and materials in the ordinary course of business
(ii) the sale, transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party; and
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that, in the case of clauses (i), (ii)or enter into any partnerships, (iii) and (vi) abovejoint ventures or sale-leaseback transactions, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease purchase or otherwise acquire (in a single transaction one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) the Transaction;
(b) the Borrower and its Subsidiaries may lease as lessee or license as licensee real or personal property in the ordinary course of business and otherwise limited or prohibited hereinin compliance with this Agreement;
(c) or Capital Expenditures by the Borrower and its Subsidiaries to the extent not in violation of Section 8.08;
(iid) enter into any transaction of merger or consolidationthe advances, except for (A) investments or acquisitions and loans permitted pursuant to Section 6.58.05;
(e) each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to -------- the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration at least 80% of which (taking the amount of cash, the principal amount of any promissory notes and the fair market value, as determined in good faith by senior management of the Borrower, of any other consideration) shall be in the form of cash, (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (e) shall not exceed $2,500,000 in any fiscal year of the Borrower and (z) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested in replacement assets to the extent permitted by Section 4.02(A)(c);
(f) each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to -------- the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration at least 80% of which (taking the amount of cash, the principal amount of any promissory notes and the fair market value, as determined in good faith by senior management of the Borrower, of any other consideration) shall be in the form of cash, and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (f) shall not exceed $500,000 in any fiscal year of the Borrower;
(g) the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(h) the Borrower and its Subsidiaries may sell for cash or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(i) the Borrower and its Subsidiaries may, in the ordinary course of business, license patents, trademarks, copyrights and know-how to third Persons and to one another, so long as each such license is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(j) any Foreign Subsidiary of the Borrower may be merged with and into, or be voluntarily dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower so long as in each case at least 65% of the total combined voting power of all classes of capital stock of all first-tier Foreign Subsidiaries of the Borrower are pledged pursuant to the Pledge Agreement;
(k) the assets of any Foreign Subsidiary of the Borrower may be transferred to the Borrower or any of its Wholly-Owned Domestic Subsidiaries, and any Foreign Subsidiary of the Borrower may be merged with and into, or be voluntarily dissolved or liquidated into, the Borrower or any of its Wholly-Owned Domestic Subsidiaries so long as the Borrower or such Wholly-Owned Domestic Subsidiary is the surviving corporation of any such merger, dissolution or liquidation;
(l) the Borrower or any of its Wholly-Owned Domestic Subsidiaries may transfer to one or more Wholly-Owned Foreign Subsidiaries of the Borrower those assets theretofore transferred to the Borrower or such Wholly-Owned Domestic Subsidiary by a Foreign Subsidiary (whether by merger, liquidation, dissolution or otherwise) pursuant to clause (k) of this Section 8.02;
(m) the Borrower and its Wholly-Owned Domestic Subsidiaries may sell or otherwise transfer inventory between or among themselves in the ordinary course of business for resale by the Borrower or such Wholly-Owned Domestic Subsidiaries, as the case may be, so long as the security interest granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Agreement in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(n) the Borrower may lease as lessor equipment, machinery or its Real Property to one or more Wholly-Owned Domestic Subsidiaries of the Borrower so long as (x) such lease is for fair market value (determined in good faith by the Board of Directors or senior management of the Borrower) and (y) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so leased shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(o) any Domestic Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly-Owned Domestic Subsidiary of the Borrower so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(p) any Wholly-Owned Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly-Owned Domestic Subsidiary so merged, dissolved or liquidated shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(q) any Wholly-Owned Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily dissolved or liquidated into, any other Wholly-Owned Domestic Subsidiary of the Borrower so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Domestic Subsidiary so merged, dissolved or liquidated shall remain 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
(r) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may acquire assets constituting all or substantially all of a business, business unit, division or product line of any Person not already a Subsidiary of the Borrower or the capital stock of any such Person (any such acquisition permitted by this clause (r), 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 business permitted pursuant to Section 8.01(a), (ii) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a Wholly-Owned Domestic Subsidiary of the Borrower or (B) the merger or consolidation of a Credit Party such Person is merged with and into another a Wholly-Owned Domestic Subsidiary of the Borrower (with such Wholly-Owned Domestic Subsidiary being the surviving corporation of such merger), and in any case, all of the provisions of Section 8.15 have been complied with in respect of such Person, (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 8.03 or 8.04, as the case may be, (iv) the only consideration paid by the Borrower in respect of any such Permitted Acquisition consists of cash (including Excess Equity Proceeds), Holdings Common Stock and/or Permitted Holdings PIK Securities permitted to be issued under Section 8.13 and/or Indebtedness to the extent permitted by Section 8.04, (v) all representations and warranties contained herein and in the other Credit Party; provided that Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Permitted Acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (vi) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for this purpose all cash consideration paid (including all Excess Equity Proceeds used in connection therewith), the face amount of all Indebtedness (including Permitted Holdings PIK Securities, if in the form of Indebtedness) incurred in connection with such Permitted Acquisition, and the fair market value (determined as of the proposed date of consummation of such Permitted Acquisition in good faith by senior management of the Borrower) of any Permitted Holdings PIK Securities (if in the form of equity) or Holdings Common Stock, if any, issued as consideration in connection with such Permitted Acquisition), in connection with such Permitted Acquisition when added to the aggregate amount paid (including for this purpose all cash consideration paid, the face amount of all Indebtedness (including Permitted Holdings PIK Securities, if in the form of Indebtedness) incurred in connection with each such Permitted Acquisition and the fair market value (determined as of the date of consummation of each such Permitted Acquisition in good faith by senior management of the Borrower) of any Permitted Holdings PIK Securities (if in the form of equity) or Holdings Common Stock, if any, issued as consideration in connection with each such Permitted Acquisition) in connection with all other Permitted Acquisitions consummated prior to such proposed Permitted Acquisition, shall not exceed $25,000,000 (or, if the Borrower Pro Forma Leverage Ratio on the date of such proposed Permitted Acquisition is a party theretoless than 3.25:1.00, $50,000,000), and (viii) the aggregate amount paid (including for this purpose all cash consideration paid (including all Excess Equity Proceeds used in connection therewith), the Borrower will face amount of all Indebtedness (including Permitted Holdings PIK Securities, if in the form of Indebtedness) incurred in connection with such Permitted Acquisition, and the fair market value (determined as of the proposed date of consummation of such Permitted Acquisition in good faith by senior management of the Borrower) of any Permitted Holdings PIK Securities (if in the form of equity) or Holdings Common Stock, if any, issued as consideration in connection with such Permitted Acquisition), in connection with any single Permitted Acquisition or series of related Permitted Acquisitions, shall not exceed $12,500,000 (or, if the Pro Forma Leverage Ratio on the date of such proposed Permitted Acquisition is less than 3.25:1.00, $25,000,000). 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 Collateral in each case shall be sold or otherwise disposed of free and clear of the surviving corporationLiens created by the Security Documents and the Agent shall take such actions (including, without limitation, directing the Collateral Agent to take such actions) as are appropriate in connection therewith.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Each of the Credit Parties Holdings will not, nor and will it not permit any Subsidiary of its Subsidiaries to,
(a) dissolve, wind up, liquidate or wind up dissolve its affairsaffairs or enter into any transaction of merger or consolidation, or convey, sell, transfer, lease or otherwise dispose of all or any part of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of than inventory and materials in the ordinary course of business
(ii) the sale, transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party; and
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that, in the case of clauses (i), (ii)or enter into any partnerships, (iii) and (vi) abovejoint ventures or sale-leaseback transactions, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease purchase or otherwise acquire (in a single transaction one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property materials and equipment in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) the Transaction;
(b) the Borrower and its Subsidiaries may lease, as lessee, or license, as licensee, real or personal property (including, without limitation, intellectual property) in the ordinary course of business and otherwise limited or prohibited hereinnot in violation of this Agreement;
(c) or Capital Expenditures by the Borrower and its Subsidiaries to the extent not in violation of Section 8.08;
(iid) enter into any transaction of merger or consolidationthe advances, except for (A) investments or acquisitions and loans permitted pursuant to Section 6.58.05;
(e) each of the Borrower and its Subsidiaries may sell or otherwise dispose of assets, provided, that (w) each such sale or disposition shall -------- be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration at least 90% of which shall be in the form of cash (for such purpose, taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined in good faith by senior management of the Borrower, of any other consideration), (y) the aggregate sale proceeds from all assets subject to such sales or dispositions pursuant to this clause (e) shall not exceed $1,000,000 in any fiscal year of the Borrower and (z) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested in replacement assets to the extent permitted by Section 4.02(A)(c);
(f) each of the Borrower and its Subsidiaries may sell or otherwise dispose of assets, provided, that (w) each such sale or disposition shall -------- be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration at least 90% of which shall be in the form of cash (for such purpose, taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined in good faith by senior management of the Borrower, of any other consideration) and (y) the aggregate sale proceeds from all assets subject to such sales or dispositions pursuant to this clause (f) shall not exceed $100,000 in any fiscal year of the Borrower;
(g) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(h) the Borrower and its Subsidiaries may sell for cash or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(i) the Borrower and its Subsidiaries may, in the ordinary course of business, license patents, trademarks, copyrights and know-how to third Persons and to one another, so long as each such license is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(j) the assets of any Foreign Subsidiary of the Borrower may be transferred to the Borrower or any Wholly-Owned Subsidiary of the Borrower, and any Foreign Subsidiary of the Borrower may be merged with and into, or be voluntarily dissolved or liquidated into, the Borrower or any Wholly- Owned Subsidiary of the Borrower, so long as the Borrower or such Wholly- Owned Subsidiary, as the case may be, is the surviving corporation of any such merger, dissolution or liquidation;
(k) the Borrower and its Wholly-Owned Domestic Subsidiaries may sell or otherwise transfer inventory between or among themselves in the ordinary course of business for resale by the Borrower or such Wholly-Owned Domestic Subsidiaries, as the case may be, so long as the security interest granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Agreement in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(l) the Borrower may lease, as lessor, equipment, machinery or its Real Property to one or more Wholly-Owned Domestic Subsidiaries of the Borrower, so long as (x) such lease is for fair market value (determined in good faith by the Board of Directors or senior management of the Borrower) and (y) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so leased shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(m) any Domestic Subsidiary of the Borrower may transfer assets (other than inventory and accounts receivable) to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower, so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(n) any Wholly-Owned Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily dissolved or liquidated into, the Borrower, so long as (i) the Borrower is the surviving corporation of such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly-Owned Domestic Subsidiary so merged, dissolved or liquidated shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(o) any Wholly-Owned Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily dissolved or liquidated into, any other Wholly-Owned Domestic Subsidiary of the Borrower, so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly- Owned Domestic Subsidiary so merged, dissolved or liquidated shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(p) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may acquire assets constituting all or substantially all of a business, business unit, division or product line of any Person not already a Subsidiary of the Borrower or the capital stock of any such Person (any such acquisition permitted by this clause (p), a "Permitted Acquisition"), provided, that (i) such Person (or the assets so -------- acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the business permitted pursuant to Section 8.01(a), (ii) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a Wholly-Owned Domestic Subsidiary of the Borrower or (B) such Person is merged with and into a Wholly-Owned Domestic Subsidiary of the Borrower (with such Wholly-Owned Domestic Subsidiary being the surviving corporation of such merger), and in any case, all of the provisions of Section 8.15 have been complied with in respect of such Person, (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 8.03 or 8.04, as the case may be, (iv) the only consideration paid by the Borrower in respect of any such Permitted Acquisition consists of cash, Holdings Common Stock, Qualified Preferred Stock and/or Indebtedness to the extent permitted by Section 8.04(j), (v) all representations and warranties contained herein or in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Permitted Acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (vi) after giving effect to any such Permitted Acquisition, the Permitted Acquisition Cost of such Permitted Acquisition shall not exceed an amount equal to the sum of (x) $10,000,000 (less the portion, if any, of such $10,000,000 previously used to consummate a Permitted Acquisition) plus (y) the Excess Proceeds Amount at the time of such Permitted Acquisition, and (vii) with respect to each Permitted Acquisition, (A) the Borrower shall have given the Agent at least 10 Business Days prior written notice of such Permitted Acquisition, (B) the merger Borrower in good faith shall believe, based on calculations made by the Borrower on a pro forma basis (the pro forma --- ----- --- ----- adjustments made by the Borrower in making the calculations pursuant to this clause (vii)(B) and clauses (vii)(C) and (vii)(D) shall be subject to the reasonable satisfaction of the Agent) after giving effect to the respective Permitted Acquisition as if such Permitted 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, that (x) in the case of any Permitted Acquisition consummated prior to October 31, 1998, a Leverage Ratio of 5.50:1.0 or consolidation less would have been achieved for the 12- month period ended on the last day of such fiscal quarter and (y) thereafter, the covenant contained in Section 8.11 would have been satisfied for the 12-month period ended on the last day of such fiscal quarter, (C) the Borrower in good faith shall believe, based on calculations made by the Borrower, on a Credit Party pro forma basis after giving effect --- ----- to the respective Permitted Acquisition, that the covenants contained in Sections 8.09 through 8.11, inclusive, will continue to be met for the 12- month period following the date of the consummation of the respective Permitted Acquisition, (D) the Borrower in good faith shall believe, based on calculations made by the Borrower on a pro forma basis after giving --- ----- effect to the consummation of the respective Permitted Acquisition and all other Permitted Acquisitions theretofore effected as if all such Permitted Acquisitions had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, that the covenants contained in Sections 8.09 through 8.11, inclusive, would have been satisfied for the 12-month period ended on the last day of such fiscal quarter and (E) the Borrower shall have delivered to the Agent an officer's certificate executed by an Authorized Officer of the Borrower, certifying, to the best of his knowledge, compliance with the requirements of preceding clauses (i) through (vii) and into another Credit Partycontaining the pro forma --- ----- calculations required by the preceding clauses (vii)(B),(vii)(C) and (vii)(D);
(q) the Borrower and its Wholly-Owned Domestic Subsidiaries may sell or transfer inventory to the Borrower's Wholly-Owned Foreign Subsidiaries in the ordinary course of business for resale by such Wholly-Owned Foreign Subsidiary; and
(r) the Borrower and any of its Subsidiaries may sell, lease (as lessor) or otherwise dispose of assets which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business, provided that if (w) each such sale or disposition -------- shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration at least 75% of which (taking 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 and (y) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested in replacement assets to the extent permitted by Section 4.02(A)(c). 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 a party theretosold or otherwise disposed of as permitted by this Section 8.02, such Collateral (unless transferred to the Borrower will or a Subsidiary thereof) shall in each case be sold or otherwise disposed of free and clear of the surviving corporationLiens created by the Security Documents and the Agent shall take such actions (including, without limitation, directing the Collateral Agent to take such actions) as are appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Collins & Aikman Floor Coverings Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Each of the Credit Parties Holdings will not, nor and will it not permit any Subsidiary of its Subsidiaries to,
(a) dissolve, liquidate or wind up its affairs, liquidate or dissolve or enter into any transaction of merger or consolidation, or convey, sell, transfer, lease or otherwise dispose of all or any part of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of than inventory and materials in the ordinary course of business
(ii) the sale, transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party; and
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that, in the case of clauses (i), (ii)or enter into any partnerships, (iii) and (vi) abovejoint ventures or sale-leaseback transactions, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease purchase or otherwise acquire (in a single transaction one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property materials and equipment in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) the Transaction;
(b) each of the Operating Companies may lease, as lessee, or license, as licensee, real or personal property (including, without limitation, intellectual property) in the ordinary course of business and otherwise limited or prohibited hereinnot in violation of this Agreement;
(c) or each of the Operating Companies may make Capital Expenditures permitted under Section 8.08;
(iid) enter into any transaction each of merger or consolidationthe Credit Parties may make the advances, except for (A) equity contributions, investments or acquisitions and loans permitted pursuant to Section 6.58.05;
(e) each of the Operating Companies may sell or otherwise dispose of assets, provided, that (w) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the applicable Operating Company), (x) each such sale results in consideration at least 80% of which (taking into account the amount of cash and the principal amount of any promissory notes received as consideration) shall be in the form of cash, (y) the aggregate sale proceeds from all assets subject to such sales or dispositions pursuant to this clause (e) shall not exceed $1,250,000 in any fiscal year and (z) the Net Proceeds therefrom are either applied to repay Loans or reinvested in replacement assets in accordance with Section 4.02(A)(c);
(f) each of the Operating Companies may sell or otherwise dispose of assets, provided, that (w) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the applicable Operating Company), (x) each such sale results in consideration at least 80% of which (taking into account the amount of cash and the principal amount of any promissory notes received as consideration) shall be in the form of cash and (y) the aggregate sale proceeds from all assets subject to such sales or dispositions pursuant to this clause (f) shall not exceed $500,000 in any fiscal year;
(g) each of the Operating Companies may sell or discount, in each case without recourse, accounts receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(h) each of the Operating Companies may sell for cash or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are, in the reasonable business judgment of such Operating Company, the functional equivalent of the item of equipment so sold or exchanged;
(i) each of the Operating Companies may, in the ordinary course of business, license, as licensee or licensor, patents, trademarks, copyrights and know-how to or from third Persons and to one another, so long as each such license is permitted to be collaterally assigned under the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know how is granted thereunder;
(j) the assets of Foreign Subsidiary may be leased, sold, transferred or otherwise disposed of to any Domestic Operating Company, and Foreign Subsidiary may be merged with and into, or be voluntarily dissolved or liquidated into, any Domestic Operating Company, so long as the Domestic Operating Company is the surviving corporation of any such merger, dissolution or liquidation and the requirements of Section 7.11 and, with respect to leases, sales, transfers and other dispositions, Section 8.07 are complied with;
(k) any Domestic Operating Company may sell, lease or otherwise transfer assets to any other Domestic Operating Company, so long as the security interests granted to the Collateral Agent therein shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(l) any Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily dissolved or liquidated into, the Borrower, so long as (i) the Borrower is the surviving corporation of such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent pursuant to the Security Documents in the assets of such Domestic Subsidiary so merged, dissolved or liquidated shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(m) any Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily dissolved or liquidated into, any other Domestic Subsidiary of Borrower, so long as the security interests granted to the Collateral Agent pursuant to the Security Documents in the assets of such Domestic Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(n) so long as no Default or Event of Default then exists or would result therefrom, an Operating Company may acquire interests in joint ventures or assets constituting all or substantially all of a business, business unit, division or product line of any Person not already a Subsidiary of the Borrower or 100% of the outstanding capital stock of any such Person (any such investment permitted by this clause (o), a "Permitted Acquisition"), provided, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition (or, in the case of an investment in a joint venture, such joint venture is or will be) engaged (or used) primarily in a business permitted pursuant to Section 8.01(a), (ii) if such acquisition (except in the case of a joint venture) is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly-owned Domestic Subsidiary of the Borrower or (B) such Person is merged with and into a Domestic Subsidiary of the Borrower (with such Domestic Subsidiary being the surviving corporation of such merger), and in any case, all of the provisions of Section 8.13 have been complied with in respect of such Person, (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 8.03 or 8.04, as the case may be, (iv) the only consideration paid by an Operating Company in respect of any such Permitted Acquisition consists of cash, Capital Stock of Holdings consisting of common equity or Qualified Preferred Equity and/or Indebtedness described in Section 8.04(j) and (m), (v) all representations and warranties contained herein or in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Permitted Acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (vi) all the requirements of Section 7.11 shall be completed prior to or simultaneously with the consummation of such Permitted Acquisition, and (Bvii) the merger Permitted Acquisition Cost of such Permitted Acquisition, when added to the aggregate Permitted Acquisition Cost of all other Permitted Acquisitions consummated prior to such proposed Permitted Acquisition, shall not exceed (x) $10,000,000 plus (y) the Excess Proceeds Amount at the time of such Permitted Acquisition; and
(o) any Operating Company may sell, lease (as lessor) or consolidation otherwise dispose of assets which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business, provided that (w) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of such Person), (x) each such sale results in consideration at least 75% of which (taking the amount of cash and the principal amount of any promissory notes received as consideration) shall be in the form of cash and (y) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested in replacement assets to the extent permitted by Section 4.02(A)(c)(l). To the extent the Required Banks waive the provisions of this Section 8.02 with respect to the sale or other disposition of any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 8.02, such Collateral (unless transferred to a Credit Party with or a Subsidiary thereof) shall in each case be sold or otherwise disposed of free and into another Credit Party; provided that if clear of the Borrower is a party theretoLiens created by the Security Documents and the Agent shall take such actions (including, without limitation, directing the Borrower will be the surviving corporationCollateral Agent to take such actions) as are appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Pine Holdings Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Each of the Credit Parties The Borrower will not, nor and will it not permit any Subsidiary of its Subsidiaries to,
(a) dissolve, wind up, liquidate or wind up dissolve its affairsaffairs or enter into any transaction of merger or consolidation, or convey, sell, transfer, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of than inventory and materials product displays in the ordinary course of business
(ii) the sale, transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party; and
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that, in the case of clauses (i), (ii)or enter into any partnerships, (iii) and (vi) abovejoint ventures or sale-leaseback transactions, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease purchase or otherwise acquire (in a single transaction one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) the Transaction;
(b) the Borrower and its Subsidiaries may (i) lease as lessee or license as licensee real or personal property in the ordinary course of business and otherwise limited or prohibited herein) or in compliance with this Agreement and (ii) enter into any transaction sublease as lessor real or personal property located at a place of merger or consolidationbusiness where it has ceased to continue its operations until the expiration of the principal lease with respect to such property;
(c) Capital Expenditures by the Borrower and its Subsidiaries to the extent not in violation of Section 8.08;
(d) the advances, except for (A) investments or acquisitions and loans permitted pursuant to Section 6.58.05;
(e) each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration at least 80% of which (taking the amount of cash, the principal amount of any promissory notes and the fair market value, as determined in good faith by senior management of the Borrower, of any other consideration) shall be in the form of cash, (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (e) shall not exceed $500,000 in any Measurement Period of the Borrower and (z) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested in replacement assets to the extent permitted by Section 4.02(A)(c);
(f) each of the Borrower and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration at least 80% of which (taking the amount of cash, the principal amount of any promissory notes and the fair market value, as determined in good faith by senior management of the Borrower, of any other consideration) shall be in the form of cash, and (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (f) shall not exceed $100,000 in any Measurement Period of the Borrower;
(g) the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(h) the Borrower and its Subsidiaries may sell for cash or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 360 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(i) the Borrower and its Subsidiaries may, in the ordinary course of business, license patents, trademarks, copyrights and know-how to third Persons and to one another, so long as each such license is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(j) any Foreign Subsidiary of the Borrower may be merged with and into, or be voluntarily dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower so long as in each case at least 65% of the total combined voting power of all classes of capital stock of all first-tier Foreign Subsidiaries of the Borrower are pledged pursuant to the Pledge Agreement;
(k) the assets of any Foreign Subsidiary of the Borrower may be transferred to the Borrower or any of its Wholly-Owned Domestic Subsidiaries, and any Foreign Subsidiary of the Borrower may be merged with and into, or be voluntarily dissolved or liquidated into, the Borrower or any of its Wholly-Owned Domestic Subsidiaries so long as the Borrower or such Wholly-Owned Domestic Subsidiary is the surviving corporation of any such merger, dissolution or liquidation;
(l) the Borrower or any of its Wholly-Owned Domestic Subsidiaries may (x) transfer to one or more Wholly-Owned Foreign Subsidiaries of the Borrower those assets theretofore transferred to the Borrower or such Wholly-Owned Domestic Subsidiary by a Foreign Subsidiary (whether by merger, liquidation, dissolution or otherwise) pursuant to clause (k) of this Section 8.02, and (y) in lieu of selling inventory outside the United States directly to third Persons, the Borrower and its Wholly-Owned Domestic Subsidiaries may sell such inventory in the ordinary course of business to Foreign Subsidiaries for resale by such Foreign Subsidiaries;
(m) the Borrower and its Wholly-Owned Domestic Subsidiaries may sell or otherwise transfer inventory between or among themselves in the ordinary course of business for resale by the Borrower or such Wholly-Owned Domestic Subsidiaries, as the case may be, so long as the security interest granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Agreement in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(n) the Borrower may lease as lessor equipment, machinery or its Real Property to one or more Wholly-Owned Domestic Subsidiaries of the Borrower so long as (x) such lease is for fair market value (determined in good faith by the Board of Directors or senior management of the Borrower) and (y) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so leased shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(o) any Domestic Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly-Owned Domestic Subsidiary of the Borrower so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(p) any Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Domestic Subsidiary so merged, dissolved or liquidated shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(q) any Domestic Subsidiary of the Borrower may merge with and into, or be voluntarily dissolved or liquidated into, any other Wholly-Owned Domestic Subsidiary of the Borrower so long as (i) such Wholly-Owned Domestic Subsidiary of the Borrower is the surviving corporation of such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Domestic Subsidiary so merged, dissolved or liquidated shall remain 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
(r) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may acquire assets constituting all or substantially all of a business, business unit, division or product line of any Person not already a Subsidiary of the Borrower or the capital stock of any such Person (any such acquisition permitted by this clause (r), 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 business permitted pursuant to Section 8.01, (ii) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a Domestic Subsidiary of the Borrower or (B) the merger or consolidation of a Credit Party such Person is merged with and into another Credit Party; provided that if a Domestic Subsidiary of the Borrower is a party thereto(with such Domestic Subsidiary being the surviving corporation of such merger), and in any case, all of the provisions of Section 8.15 have been complied with in respect of such Person, (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 8.03 or 8.04, as the case may be, (iv) the only consideration paid by the Borrower in respect of any such Permitted Acquisition consists of cash, the Borrower will Common Stock permitted to be issued under Section 8.13 and/or Indebtedness to the surviving corporationextent permitted by Section 8.04, (v) all representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Permitted Acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, and (vi) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for this purpose all cash consideration paid, the face amount of all Indebtedness incurred in connection with such Permitted Acquisition, and the fair market value (determined as of the proposed date of consummation of such Permitted Acquisition in good faith by senior management of the Borrower) of any Common Stock, if any, issued as consideration in connection with such Permitted Acquisition), in connection with such Permitted Acquisition when added to the aggregate amount paid (including for this purpose all cash consideration paid, the face amount of all Indebtedness incurred in connection with each such Permitted Acquisition and the fair market value (determined as of the date of consummation of each such Permitted Acquisition in good faith by senior management of the Borrower) of any Common Stock, if any, issued as consideration in connection with each such Permitted Acquisition) in connection with all other Permitted Acquisitions consummated prior to such proposed Permitted Acquisition, shall not exceed (A) $1,000,000 or (B) $5,000,000 at any time that (I) the Pro Forma Leverage Ratio on the date of such Permitted Acquisition is equal to or less than 3:1, and (II) the Total Unutilized Revolving Loan Commitment after giving effect to such Permitted Acquisition is equal to or greater than $3,000,000. 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 Collateral in each case shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents and the Agent shall take such actions (including, without limitation, directing the Collateral Agent to take such actions) as are appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Labtec Inc /Ma)
Consolidation, Merger, Sale or Purchase of Assets, etc. Each of the Credit Parties The ------------------------------------------------------- Borrower will not, nor will it the Borrower permit any Subsidiary of its Subsidiaries to,
(a) dissolve, wind up, liquidate or wind up dissolve its affairsaffairs or enter into any transaction of merger, amalgamation or consolidation, or convey, sell, transfer, lease or otherwise dispose of all or any part of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of than inventory and materials in the ordinary course of business
(ii) the sale, transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party; and
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that, in the case of clauses (i), (ii)or enter into any sale-leaseback transactions, (iii) and (vi) above, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease purchase or otherwise acquire (in a single transaction one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property general intangibles, equipment, goods and equipment services in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) the Borrower and its Subsidiaries may, as lessee, enter into operating leases in the ordinary course of business with respect to real, personal, movable or immovable property;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the extent not in violation of Section 9.11;
(c) Investments permitted pursuant to Section 9.05 and the disposition or liquidation of Cash Equivalents in the ordinary course of business;
(d) least 80% of which (taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the Borrower in good faith, of any other consideration) shall be in the form of cash or (II) in the case of an asset or assets subject to Capitalized Lease Obligations, results in the assumption of all of the Capitalized Lease Obligations or other purchase money obligations of the Borrower or such Subsidiary in respect of such asset by the purchaser thereof, (y) the aggregate Net Sale Proceeds from all assets sold or otherwise disposed of pursuant to this clause (d), when added to the aggregate amount of all Capitalized Lease Obligations and all other purchase money obligations assigned in connection with all assets sold or otherwise disposed of pursuant to this clause (d) shall not exceed $10,000,000 in the aggregate in any fiscal year of the Borrower and (z) in the case of any sale or disposition of an asset constituting an Asset Sale, the Net Sale Proceeds therefrom are either applied to repay Term Loans and/or reduce the Total Revolving Loan Commitment as provided in Section 4.02(c) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(c) and/or the other relevant provisions of this Agreement;
(e) 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 to any Subsidiary 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;
(f) any Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any Subsidiary Guarantor, so long as (i) the Borrower or such Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation and (ii) 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;
(g) 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 Wholly-Owned Foreign Subsidiary of the Borrower, so long as (i) such Wholly-Owned Foreign Subsidiary 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;
(h) the Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to make Permitted Acquisitions, so long as such Permitted Acquisitions are effected in accordance with the requirements of Section 8.14;
(i) the Recapitalization, the Pacer Logistics Acquisition and the Sale-Leaseback Transaction shall be permitted to the extent consummated in accordance with the relevant requirements of Section 5.08 of this Agreement;
(j) the Borrower and its Subsidiaries may, in the ordinary course of business, except license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons or one another, so long as any such license by the Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise limited prohibit the granting of a Lien by the Borrower or prohibited hereinany of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(k) the Borrower and its Domestic Subsidiaries may transfer assets to Wholly-Owned Foreign Subsidiaries, so long as (x) no Default or Event of Default exists as the time of the respective transfer and (y) the aggregate fair market value of all such assets so transferred (determined in good faith by the Board of Directors or senior management of the Borrower) to all such Foreign Subsidiaries on and after the Effective Date does not exceed the sum of (i) $7,500,000 plus (ii) enter into 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 transaction of merger or consolidation, except for (A) investments or acquisitions permitted Subsidiary Guarantor pursuant to Section 6.5, and (B) the merger or consolidation of a Credit Party with and into another Credit Party; provided that if the Borrower is a party thereto, the Borrower will be the surviving corporation.9.02
Appears in 1 contract
Samples: Credit Agreement (Pacer Express Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Each of the Credit Parties Parent will not, nor and will it not permit any Subsidiary of its Subsidiaries to,
(a) dissolve, wind up, liquidate or wind up dissolve its affairsaffairs or enter into any transaction of merger or consolidation, or convey, sell, transfer, lease or otherwise dispose of all or any part of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of than inventory and materials in the ordinary course of business
(ii) the sale, transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party; and
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that, in the case of clauses (i), (ii)or enter into any partnerships, (iii) and (vi) abovejoint ventures or sale-leaseback transactions, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease purchase or otherwise acquire (in a single transaction one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property materials and equipment in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) the US Borrower and its Subsidiaries may, as otherwise limited or prohibited herein) or (ii) lessee, enter into any transaction operating leases in the ordinary course of merger business with respect to real or consolidationpersonal property to the extent permitted by Section 9.04;
(b) Capital Expenditures by the US Borrower and its Subsidiaries to the extent not in violation of Section 9.08;
(c) the advances, except for (A) investments or acquisitions and loans permitted pursuant to Section 6.59.05;
(d) the US Borrower and any of its Subsidiaries may sell or otherwise dispose of assets (excluding capital stock of Subsidiaries) which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business, PROVIDED that (w) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the US Borrower), (x) each such sale results in consideration at least 80% of which (taking the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the US Borrower in good faith, of any other consideration) shall be in the form of cash and (By) the merger aggregate Net Sale Proceeds of all assets sold or consolidation otherwise disposed of pursuant to this clause (d) shall be applied, to the extent required or permitted under Section 4.02(c), to repay Term Loans (or reduce the Total Revolving Loan Commitment) or make reinvestments in assets;
(e) any Subsidiary of the US Borrower may transfer assets (other than accounts receivable and inventory) to the US Borrower or to any other Wholly-Owned Subsidiary of the US Borrower which is a Credit Party Subsidiary Guarantor, so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(f) any Subsidiary of the US Borrower may merge with and into another Credit Party; provided that if into, or be dissolved or liquidated into, the US Borrower, so long as (i) the US Borrower is a party thereto, the Borrower will be the surviving corporationcorporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(g) any Subsidiary of the US Borrower may merge with and into, or be dissolved or liquidated into, any Wholly-Owned Domestic Subsidiary of the US Borrower, so long as (i) such Wholly-Owned Domestic Subsidiary is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(h) the US Borrower and its Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(i) the US Borrower shall be permitted to make Permitted Acquisitions, so long as such Permitted Acquisitions are effected in accordance with the requirements of Section 8.14;
(j) the Acquisition shall be permitted in accordance with the requirements of Section 5.08 and the component definitions contained therein; and
(k) so long as no Default or Event of Default exists or would result therefrom (including, without limitation, pursuant to Section 10.10), Parent may purchase, in the open market or otherwise, up to $20,000,000 in the aggregate of its common stock. 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 Parent or a Subsidiary thereof) shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents and the Agent shall take such actions (including, without limitation, directing the Collateral Agent to take such actions) as are appropriate in connection therewith.
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Consolidation, Merger, Sale or Purchase of Assets, etc. Each of the Credit Parties SNIG will not, nor and will it not permit any Subsidiary of its Subsidiaries to,
(a) dissolve, wind up, liquidate or wind up dissolve its affairs, sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of inventory and materials in the ordinary course of business
(ii) the sale, transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party; and
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that, in the case of clauses (i), (ii), (iii) and (vi) above, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property and equipment in the ordinary course of business, except as otherwise limited or prohibited herein) or (ii) enter into any transaction of merger or consolidation, except or sell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, but excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use
(Aa) investments The Transaction;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by Section 7.05;
(c) The investments, acquisitions and transfers or acquisitions dispositions of property permitted pursuant to Section 6.5, and 7.06;
(Bd) the The merger or consolidation or liquidation of a Credit Party any Wholly-Owned Subsidiary of the Borrower with and or into another Credit Party; Wholly-Owned Subsidiary of the Borrower, provided that if neither PRACO nor any of its Subsidiaries may merge, consolidate or liquidate into SNIC or any of its Subsidiaries;
(e) Any Regulated Insurance Company may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, provided that no Regulated Insurance Company shall enter into any Financial Reinsurance Agreements;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) each of the Borrower is and its Subsidiaries may sell assets, provided that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration in the form of cash, (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (g) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the first day of such fiscal year provided that (i) on a party theretopro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Agent) determined as if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, SNIG and its Subsidiaries would have been in compliance with Sections 7.11 through 7.16 of this Agreement as of, or for the relevant period ended on, the Borrower will last day of such fiscal quarter and (ii) on a pro forma basis (the pro forma adjustments made by SNIG pursuant to
(h) SNIG may reincorporate in Delaware by merging with a newly formed Delaware corporation ("Holdings"), with Holdings to be the surviving corporationcorporation of such merger (the "Reincorporation Merger"), provided that (i) Holdings shall have no assets (other than nominal capital) or liabilities prior to such merger, (ii) Holdings shall be renamed Superior National Insurance Group, Inc. immediately following such merger and (iii) Holdings shall execute and deliver to the Administrative Agent an assumption acknowledgment (the "SNIG Assumption Acknowledgment") substantially in the form of Exhibit I; and
(i) the sale, transfer or disposition of any property of PRACO located in Florida, Texas, Alabama or Georgia in an amount not to exceed $1,000,000. To the 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 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)
