Mergers, Consolidations or Sales. Neither such Loan Party nor any of the Mexican Subsidiaries shall enter into any transaction of merger, reorganization or consolidation, or transfer, sell, assign, lease or otherwise dispose of all or any part of its property, or sell or issue any of its equity interests, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except for: (i) sales of Inventory, licensing of Proprietary Rights, sales of services and dispositions of Restricted Investments of the type described in clauses (d), (e) or (f) of the definition thereof, in each case in the ordinary course of its business; provided, that (A) sales of Inventory by a Borrower or Foamex Canada shall not be permitted to be made to the Parent, FMXI or any Foreign Subsidiaries other than Foamex Canada, Foamex Asia Co., Ltd. or any of the Mexican Subsidiaries and such sales shall only be permitted if made on an arm's-length basis in the ordinary course of business on customary trade terms and so long as the aggregate amount of Accounts of the Borrowers and Foamex Canada outstanding in connection with such sales shall not exceed at any time $4,000,000 and (B) licensing of Proprietary Rights and sales of services shall only be permitted if made on an arm's-length basis; (ii) if required by applicable law, the sale of capital stock of any Foreign Subsidiary of a Loan Party in order to qualify members of the governing body of such Subsidiary; (iii) sales or other dispositions of Equipment by (A) any of the Mexican Subsidiaries and (B) one or more Loan Parties in the ordinary course of business with an orderly liquidation value (as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent or, if such Equipment being disposed of is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent and (x) has a net book value in excess of $250,000, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment or (y) has a net book value of $250,000 or less, the orderly liquidation value of such Equipment shall be deemed to equal the then net book value of such Equipment) not to exceed $500,000 in the aggregate in any Fiscal Year for all of the Loan Parties; provided, that within 150 days following any such Equipment sale or disposition, such Loan Party shall either (i) make Capital Expenditures permitted hereunder with the proceeds of such sale or disposition in other Equipment that is free and clear of all Liens except the Agent's Liens and Permitted Liens under clauses (h) and (j) of such defined term or (ii) apply such proceeds in accordance with Section 3.3(a); (iv) the sale by Foamex of its Milan, Tennessee facility; (A) the merger of any wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) with or into another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) in one or a series of transactions to another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), (B) the merger of any wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) into such Borrower or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) in one or a series of transactions to such Borrower; provided, that in the case of a merger, the surviving Person is a Borrower, and if Foamex is a party to such a merger, the surviving Person is Foamex and (C) the merger of any wholly-owned Subsidiary of a Mexican Subsidiary with or into a Mexican Subsidiary or of one Mexican Subsidiary with or into another Mexican Subsidiary or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a Mexican Subsidiary or a wholly-owned Subsidiary of a Mexican Subsidiary in one or a series of transactions to a Mexican Subsidiary; (vi) transfers or other dispositions of Equipment by Foamex or any of its Domestic Subsidiaries to the China Joint Venture in connection with the Foamex China Transaction, but solely to the extent permitted by clause (m) of the defined term Restricted Investment; (vii) the leases and subleases existing on the Closing Date set forth on Schedule 7.11(vii); (viii) leases and subleases of property by such Loan Party which in the aggregate for all Loan Parties do not provide for net rental payments to the Loan Parties in excess of $250,000 in the aggregate in any Fiscal Year; (ix) the sale by Foamex of its LaPorte, Indiana facility and its facilities located in Elkhart, Indiana at 0000 Xxxxxx Xxxx and 000 Xxxxxxxxxx Xxxxxxx; provided, that in each case, the Net Proceeds received by Foamex in respect of such sale at the time such sale is consummated shall not be less than the sum of (i) 50% of the fair market value of the Real Estate in such facility included in such sale, as set forth in the then most recent Real Estate Appraisal delivered to the Administrative Agent and (ii) 80% of the orderly liquidation value of the Equipment of Foamex at such facility included in such sale, as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent; (x) sales by Foamex or any of its Domestic Subsidiaries to Foamex Canada of Equipment no longer used in the U.S. operations of Foamex or any of its Domestic Subsidiaries; provided, that Foamex or the applicable Domestic Subsidiary shall receive Net Proceeds in respect of each such sale at the time such sale is consummated in an amount no less than 80% of the orderly liquidation value of such Equipment being sold as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent (or, if such Equipment being sold is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment); (xi) the license by Foamex of its patented surface modification technology to JPS Automotive L.P. and the lease of certain of its Equipment not in excess of a net book value of $500,000 to JPS Automotive L.P. associated with the use of such license; (xii) sales or other dispositions of assets of any of the Mexican Subsidiaries; (xiii) contributions of assets by a Loan Party (other than the Parent or FMXI) or a Mexican Subsidiary, either directly or through another Loan Party (other than the Parent or FMXI) or Mexican Subsidiary, solely to the extent described in clause (h) or (m) of the defined term Restricted Investment; and (xiv) other sales of assets (other than Accounts, Inventory, Equipment included in the then most recent Equipment Appraisal delivered to the Administrative Agent or Real Estate included in the then most recent Real Estate Appraisal delivered to the Administrative Agent) for an aggregate sales price for all Loan Parties not to exceed $10,000 in any Fiscal Year; provided, that the consideration received by the applicable Loan Party in respect of any such sale shall only be in cash.
Appears in 1 contract
Mergers, Consolidations or Sales. Neither such Loan Party nor any of the Mexican Subsidiaries shall enter into any transaction of merger, reorganization or consolidation, or transfer, sell, assign, lease or otherwise dispose of all or any part of its property, or sell or issue any of its equity interests, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except for:
(i) sales of Inventory, licensing of Proprietary Rights, sales of services and dispositions of Restricted Investments of the type described in clauses (d), (e) or (f) of the definition thereof, in each case in the ordinary course of its business; provided, that (A) sales of Inventory by a Borrower or Foamex Canada shall not be permitted to be made to the Parent, FMXI or any Foreign Subsidiaries other than Foamex Canada, Foamex Asia Co., Ltd. Ltd., or any of the Mexican Subsidiaries and such sales shall only be permitted if made on an arm's-length basis in the ordinary course of business on customary trade terms and so long as the aggregate amount of Accounts of the Borrowers and Foamex Canada outstanding in connection with such sales shall not exceed at any time $4,000,000 and (B) licensing of Proprietary Rights and sales of services shall only be permitted if made on an arm's-length basis;
(ii) if required by applicable law, the sale of capital stock of any Foreign Subsidiary of a Loan Party in order to qualify members of the governing body of such Subsidiary;
(iii) sales or other dispositions of Equipment by (A) any of the Mexican Subsidiaries and (B) one or more Loan Parties in the ordinary course of business with an orderly liquidation value (as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent or, if such Equipment being disposed of is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent and (x) has a net book value in excess of $250,000, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment or (y) has a net book value of $250,000 or less, the orderly liquidation value of such Equipment shall be deemed to equal the then net book value of such Equipment) not to exceed $500,000 750,000 in the aggregate in any Fiscal Year during the term of this Agreement for all of the Loan Parties; provided, that within 150 days following any such Equipment sale or disposition, such Loan Party shall either (i) make Capital Expenditures permitted hereunder with the proceeds of such sale or disposition in other Equipment that is free and clear of all Liens except the Agent's Liens and Permitted Liens under clauses (h) and clause (j) of such defined term or (ii) apply such proceeds in accordance with Section 3.3(a);
(iv) the sale by Foamex of its Milan, Tennessee facility;
(A) the merger of any wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) with or into another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) in one or a series of transactions to another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), (B) the merger of any wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) into such Borrower or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) in one or a series of transactions to such Borrower; provided, that in the case of a merger, the surviving Person is a Borrower, and if Foamex is a party to such a merger, the surviving Person is Foamex and (Cv) the merger of any wholly-owned Subsidiary of a Mexican Subsidiary with or into a Mexican Subsidiary or of one Mexican Subsidiary with or into another Mexican Subsidiary or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a Mexican Subsidiary or a wholly-owned Subsidiary of a Mexican Subsidiary in one or a series of transactions to a Mexican Subsidiary;
(vi) transfers or other dispositions of Equipment by Foamex or any of its Domestic Subsidiaries to the China Joint Venture in connection with the Foamex China Transaction, but solely to the extent permitted by clause (m) of the defined term Restricted Investment;
(vii) the leases and subleases existing on the Closing Date set forth on Schedule 7.11(vii);
(viii) leases and subleases of property by such Loan Party which in the aggregate for all Loan Parties do not provide for net rental payments to the Loan Parties in excess of $250,000 375,000 in the aggregate in any Fiscal Yearduring the term of this Agreement;
(ix) the sale by Foamex of its LaPorte, Indiana facility and its facilities facility located in Elkhart, Indiana at 0000 Xxxxxx Xxxx and 000 Xxxxxxxxxx Xxxxxxx603 Industrial Parkway; provided, that in each case, the Net Proceeds received xxx Xxx Xxxxxxxx xxxxived by Foamex in respect of such sale at the time such sale is consummated shall not be less than the sum of (i) 5060% of the fair market value of the Real Estate in portion of such facility included in such sale, as set forth in the then most recent Real Estate Appraisal delivered to the Administrative Agent and (ii) 8085% of the orderly liquidation value of the Equipment of Foamex at such facility included in such sale, as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent;
(x) sales by Foamex or any of its Domestic Subsidiaries to Foamex Canada of Equipment no longer used in the U.S. operations of Foamex or any of its Domestic Subsidiaries; provided, that Foamex or the applicable Domestic Subsidiary shall receive Net Proceeds in respect of each such sale at the time such sale is consummated in an amount no less than 8085% of the orderly liquidation value of such Equipment being sold as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent (or, if such Equipment being sold is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment);
(xi) the license by Foamex of its patented surface modification technology to JPS Automotive L.P. and the lease of certain of its Equipment not in excess of a net book value of $500,000 to JPS Automotive L.P. associated with the use of such license;
(xii) sales or other dispositions of (A) assets of any of the Mexican SubsidiariesSubsidiaries and (B) assets set forth on Schedule 7.11(xii) hereto on the terms set forth on such Schedule;
(xiii) contributions of assets by a Loan Party (other than the Parent or FMXI) or a Mexican Subsidiary, either directly or through another Loan Party (other than the Parent or FMXI) or Mexican Subsidiary, solely to the extent described in clause (h) or (m) of the defined term Restricted Investment; and
(xiv) other sales of assets (other than Accounts, Inventory, Equipment included in the then most recent Equipment Appraisal delivered to the Administrative Agent or Real Estate included in the then most recent Real Estate Appraisal delivered to the Administrative Agent) for an aggregate sales price for all Loan Parties not to exceed $10,000 in any Fiscal Year150,000 during the term of this Agreement; provided, that the consideration received by the applicable Loan Party in respect of any such sale shall only be in cash.
Appears in 1 contract
Mergers, Consolidations or Sales. Neither such Loan Party nor any of the Mexican Subsidiaries shall enter into any transaction of merger, reorganization or consolidation, or transfer, sell, assign, lease or otherwise dispose of all or any part of its property, or sell or issue any of its equity interests, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except for:
(i) sales of Inventory, licensing of Proprietary Rights, sales of services and dispositions of Restricted Investments of the type described in clauses (d), (e) or (f) of the definition thereof, in each case in the ordinary course of its business; provided, that (A) sales of Inventory by a Borrower or Foamex Canada shall not be permitted to be made to the Parent, FMXI or any Foreign Subsidiaries other than Foamex Canada, Foamex Asia Co., Ltd. or any of the Mexican Subsidiaries and such sales shall only be permitted if made on an arm's-length basis in the ordinary course of business on customary trade terms and so long as the aggregate amount of Accounts of the Borrowers and Foamex Canada outstanding in connection with such sales shall not exceed at any time $4,000,000 and (B) licensing of Proprietary Rights and sales of services shall only be permitted if made on an arm's-length basis;
(ii) if required by applicable law, the sale of capital stock of any Foreign Subsidiary of a Loan Party in order to qualify members of the governing body of such Subsidiary;
(iii) sales or other dispositions of Equipment by (A) any of the Mexican Subsidiaries and (B) one or more Loan Parties in the ordinary course of business with an orderly liquidation value (as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent or, if such Equipment being disposed of is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent and (x) has a net book value in excess of $250,000, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment or (y) has a net book value of $250,000 or less, the orderly liquidation value of such Equipment shall be deemed to equal the then net book value of such Equipment) not to exceed $500,000 750,000 in the aggregate in any Fiscal Year during the term of this Agreement for all of the Loan Parties; provided, that within 150 days following any such Equipment sale or disposition, such Loan Party shall either (i) make Capital Expenditures permitted hereunder with the proceeds of such sale or disposition in other Equipment that is free and clear of all Liens except the Agent's Liens and Permitted Liens under clauses (h) and clause (j) of such defined term or (ii) apply such proceeds in accordance with Section 3.3(a3.4(a);
(iv) the sale by Foamex of its Milan, Tennessee facility;
(A) the merger of any wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) with or into another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) in one or a series of transactions to another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), (B) the merger of any wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) into such Borrower or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) in one or a series of transactions to such Borrower; provided, that in the case of a merger, the surviving Person is a Borrower, and if Foamex is a party to such a merger, the surviving Person is Foamex and (Cv) the merger of any wholly-owned Subsidiary of a Mexican Subsidiary with or into a Mexican Subsidiary or of one Mexican Subsidiary with or into another Mexican Subsidiary or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a Mexican Subsidiary or of a wholly-owned Subsidiary of a Mexican Subsidiary in one or a series of transactions to a Mexican Subsidiary;
(vi) transfers or other dispositions of Equipment by Foamex or any of its Domestic Subsidiaries to the China Joint Venture in connection with the Foamex China Transaction, but solely to the extent permitted by clause (m) of the defined term Restricted Investment;
(vii) the leases and subleases existing on the Closing Date set forth on Schedule 7.11(vii);
(viii) leases and subleases of property by such Loan Party which in the aggregate for all Loan Parties do not provide for net rental payments to the Loan Parties in excess of $250,000 375,000 in the aggregate in any Fiscal Yearduring the term of this Agreement;
(ix) the sale by Foamex of its LaPorte, Indiana facility and its facilities facility located in Elkhart, Indiana at 0000 Xxxxxx Xxxx and 000 Xxxxxxxxxx Xxxxxxx603 Industrial Parkway; provided, that in each case, the Net Proceeds received by Nex Xxxxxxxx xxxxxxxx xy Foamex in respect of such sale at the time such sale is consummated shall not be less than the sum of (i) 5060% of the fair market value of the Real Estate in portion of such facility included in such sale, as set forth in the then most recent Real Estate Appraisal delivered to the Administrative Agent and (ii) 8085% of the orderly liquidation value of the Equipment of Foamex at such facility included in such sale, as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent;
(x) sales by Foamex or any of its Domestic Subsidiaries to Foamex Canada of Equipment no longer used in the U.S. operations of Foamex or any of its Domestic Subsidiaries; provided, that Foamex or the applicable Domestic Subsidiary shall receive Net Proceeds in respect of each such sale at the time such sale is consummated in an amount no less than 8085% of the orderly liquidation value of such Equipment being sold as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent (or, if such Equipment being sold is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment);
(xi) the license by Foamex of its patented surface modification technology to JPS Automotive L.P. and the lease of certain of its Equipment not in excess of a net book value of $500,000 to JPS Automotive L.P. associated with the use of such license;
(xii) sales or other dispositions of (A) assets of any of the Mexican SubsidiariesSubsidiaries and (B) other assets set forth on Schedule 7.11(xii) hereto on the terms set forth in such schedule;
(xiii) contributions of assets by a Loan Party (other than the Parent or FMXI) or a Mexican Subsidiary, either directly or through another Loan Party (other than the Parent or FMXI) or Mexican Subsidiary, solely to the extent described in clause (h) or (m) of the defined term Restricted Investment; and
(xiv) other sales of assets (other than Accounts, Inventory, Equipment included in the then most recent Equipment Appraisal delivered to the Administrative Agent or Real Estate included in the then most recent Real Estate Appraisal delivered to the Administrative Agent) for an aggregate sales price for all Loan Parties not to exceed $10,000 in any Fiscal Year150,000 during the term of this Agreement; provided, that the consideration received by the applicable Loan Party in respect of any such sale shall only be in cash.
Appears in 1 contract
Samples: Debt Agreement (Foamex L P)
Mergers, Consolidations or Sales. Neither such Such Loan Party nor shall not, and shall not suffer or permit any of the Mexican its Subsidiaries shall to, enter into any transaction of merger, amalgamation, reorganization (other than the Case), or consolidation, or transfer, sell, assign, lease lease, or otherwise dispose of all or any part of its property, or sell or issue any of its equity interests, or wind up, liquidate or dissolve, or agree to do any of the foregoing or petition the Bankruptcy Court for authority to do any of the foregoing, except for:
(i) for sales of Inventory, licensing of Proprietary Rights, sales of services and dispositions of Restricted Investments of the type described in clauses (d), (e) or (f) of the definition thereof, in each case Inventory in the ordinary course of its business, (ii) sales or other dispositions on a non-recourse basis of Consumer Credit Card Receivables pursuant to a securitization program that is acceptable to the Agent and Majority Lenders; (iii) sales or closings by a Borrower or Xxxxx Xxxxx Canada of its retail and outlet stores; provided, that (Ax) in the case of any such sales (including "going out of business" sales in connection with the closing down of a retail or outlet store) which include assets consisting of Consumer Credit Card Receivables, Major Credit Card Receivables, Inventory or Real Estate, the net cash proceeds received by a such Borrower or Foamex Xxxxx Xxxxx Canada from such sale shall be in an aggregate amount not less than the proceeds from Revolving Loans that any Borrower would be able to receive in respect of such Consumer Credit Card Receivables, Major Credit Card Receivables, Inventory or Real Estate, as the case may be, if such Consumer Credit Card Receivables, Major Credit Card Receivables, Inventory or Real Estate were included in the calculation of Combined Availability (without giving effect to any Commitment, the Maximum Revolver Amount or any other limits included in the calculation of Combined Availability) and (y) the aggregate number of retail or outlet stores sold or closed during the term of this Agreement shall not be permitted to be made to the Parent, FMXI exceed 80 stores; (iv) for sales or any Foreign Subsidiaries other than Foamex Canada, Foamex Asia Co., Ltd. or any dispositions of the Mexican Subsidiaries and such sales shall only be permitted if made on an arm's-length basis Equipment in the ordinary course of business on customary trade terms and so long as the aggregate amount of Accounts of the Borrowers and Foamex Canada outstanding in connection with that are obsolete or no longer useable by such sales shall not exceed at any time $4,000,000 and (B) licensing of Proprietary Rights and sales of services shall only be permitted if made on an arm's-length basis;
(ii) if required by applicable law, the sale of capital stock of any Foreign Subsidiary of a Loan Party or Subsidiary in order to qualify members of the governing body of such Subsidiary;
(iii) sales or other dispositions of Equipment by (A) any of the Mexican Subsidiaries and (B) one or more Loan Parties in the ordinary course of its business with an orderly liquidation aggregate fair market value (as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent or, if such Equipment being disposed of is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent and (x) has a net book value in excess of $250,000, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment or (y) has a net book value of $250,000 or less, the orderly liquidation value of such Equipment shall be deemed to equal the then net book value of such Equipment) not to exceed $500,000 in the aggregate 2,500,000 in any Fiscal Year (exclusive of any net cash proceeds from any such sale or other disposition made in such Fiscal Year which is reinvested in Equipment within 90 days of such sale or other disposition) and (v) for all other sales of stores by a Borrower or Xxxxx Xxxxx Canada having an aggregate book value not to exceed $5,000,000 during the Loan Parties; provided, that within 150 days following any term of this Agreement. Following each such Equipment sale or disposition, such Loan Party or Subsidiary, as the case may be, shall either (i) make Capital Expenditures permitted hereunder with the apply such proceeds of such sale or disposition in other Equipment first, to satisfy any debt that is secured by a lien (other than the Agent's Lien) encumbering such asset which is superior in priority to the Agent's, and second, to the Loans in accordance with Section 4.5. All Equipment purchased with such proceeds shall be free and clear of all Liens Liens, except the Agent's Liens and other Permitted Liens (except those Permitted Liens under clauses clause (h) and (ji) of such defined term or (ii) apply such proceeds in accordance with Section 3.3(aterm);
(iv) the sale by Foamex of its Milan, Tennessee facility;
(A) the merger of any wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) with or into another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) in one or a series of transactions to another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), (B) the merger of any wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) into such Borrower or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) in one or a series of transactions to such Borrower; provided, that in the case of a merger, the surviving Person is a Borrower, and if Foamex is a party to such a merger, the surviving Person is Foamex and (C) the merger of any wholly-owned Subsidiary of a Mexican Subsidiary with or into a Mexican Subsidiary or of one Mexican Subsidiary with or into another Mexican Subsidiary or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a Mexican Subsidiary or a wholly-owned Subsidiary of a Mexican Subsidiary in one or a series of transactions to a Mexican Subsidiary;
(vi) transfers or other dispositions of Equipment by Foamex or any of its Domestic Subsidiaries to the China Joint Venture in connection with the Foamex China Transaction, but solely to the extent permitted by clause (m) of the defined term Restricted Investment;
(vii) the leases and subleases existing on the Closing Date set forth on Schedule 7.11(vii);
(viii) leases and subleases of property by such Loan Party which in the aggregate for all Loan Parties do not provide for net rental payments to the Loan Parties in excess of $250,000 in the aggregate in any Fiscal Year;
(ix) the sale by Foamex of its LaPorte, Indiana facility and its facilities located in Elkhart, Indiana at 0000 Xxxxxx Xxxx and 000 Xxxxxxxxxx Xxxxxxx; provided, that in each case, the Net Proceeds received by Foamex in respect of such sale at the time such sale is consummated shall not be less than the sum of (i) 50% of the fair market value of the Real Estate in such facility included in such sale, as set forth in the then most recent Real Estate Appraisal delivered to the Administrative Agent and (ii) 80% of the orderly liquidation value of the Equipment of Foamex at such facility included in such sale, as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent;
(x) sales by Foamex or any of its Domestic Subsidiaries to Foamex Canada of Equipment no longer used in the U.S. operations of Foamex or any of its Domestic Subsidiaries; provided, that Foamex or the applicable Domestic Subsidiary shall receive Net Proceeds in respect of each such sale at the time such sale is consummated in an amount no less than 80% of the orderly liquidation value of such Equipment being sold as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent (or, if such Equipment being sold is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment);
(xi) the license by Foamex of its patented surface modification technology to JPS Automotive L.P. and the lease of certain of its Equipment not in excess of a net book value of $500,000 to JPS Automotive L.P. associated with the use of such license;
(xii) sales or other dispositions of assets of any of the Mexican Subsidiaries;
(xiii) contributions of assets by a Loan Party (other than the Parent or FMXI) or a Mexican Subsidiary, either directly or through another Loan Party (other than the Parent or FMXI) or Mexican Subsidiary, solely to the extent described in clause (h) or (m) of the defined term Restricted Investment; and
(xiv) other sales of assets (other than Accounts, Inventory, Equipment included in the then most recent Equipment Appraisal delivered to the Administrative Agent or Real Estate included in the then most recent Real Estate Appraisal delivered to the Administrative Agent) for an aggregate sales price for all Loan Parties not to exceed $10,000 in any Fiscal Year; provided, that the consideration received by the applicable Loan Party in respect of any such sale shall only be in cash.
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Mergers, Consolidations or Sales. Neither such Such Loan Party nor shall not, and shall not suffer or permit any of the Mexican its Subsidiaries shall to, enter into any transaction of merger, amalgamation, reorganization (other than the Case), or consolidation, or transfer, sell, assign, lease lease, or otherwise dispose of all or any part of its property, or sell or issue any of its equity interests, or wind up, liquidate or dissolve, or agree to do any of the foregoing or petition the Bankruptcy Court for authority to do any of the foregoing, except for:except
(ia) for sales of Inventory, licensing of Proprietary Rights, sales of services and dispositions of Restricted Investments of the type described in clauses (d), (e) or (f) of the definition thereof, in each case Inventory in the ordinary course of its business,
(b) sales or closings by a Borrower or Xxxxx Xxxxx Canada of its retail and outlet stores; provided, that (Ax) in the case of any such sales (including “going out of business” sales in connection with the closing down of a retail or outlet store) which include assets consisting of Major Credit Card Receivables, Inventory or Real Estate, the net cash proceeds received by a such Borrower or Foamex Xxxxx Xxxxx Canada from such sale shall be in an aggregate amount not less than the proceeds from Revolving Loans that any Borrower would be able to receive in respect of such Major Credit Card Receivables, Inventory or Real Estate, as the case may be, if such Major Credit Card Receivables, Inventory or Real Estate were included in the calculation of Combined Availability (without giving effect to any Commitment, the Maximum Revolver Amount, or any other limits included in the calculation of Combined Availability) and (y) the aggregate number of retail or outlet stores of Xxxxx Xxxxx and Xxxxx Xxxxx Canada sold or closed during the term of this Agreement shall not be permitted to be made to the Parent, FMXI exceed 150 stores;
(c) for sales or any Foreign Subsidiaries other than Foamex Canada, Foamex Asia Co., Ltd. or any dispositions of the Mexican Subsidiaries and such sales shall only be permitted if made on an arm's-length basis Equipment in the ordinary course of business on customary trade terms and so long as the aggregate amount of Accounts of the Borrowers and Foamex Canada outstanding in connection with that are obsolete or no longer useable by such sales shall not exceed at any time $4,000,000 and (B) licensing of Proprietary Rights and sales of services shall only be permitted if made on an arm's-length basis;
(ii) if required by applicable law, the sale of capital stock of any Foreign Subsidiary of a Loan Party or Subsidiary in order to qualify members of the governing body of such Subsidiary;
(iii) sales or other dispositions of Equipment by (A) any of the Mexican Subsidiaries and (B) one or more Loan Parties in the ordinary course of its business with an orderly liquidation aggregate fair market value (as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent or, if such Equipment being disposed of is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent and (x) has a net book value in excess of $250,000, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment or (y) has a net book value of $250,000 or less, the orderly liquidation value of such Equipment shall be deemed to equal the then net book value of such Equipment) not to exceed $500,000 in the aggregate 2,500,000 in any Fiscal Year (exclusive of any net cash proceeds from any such sale or other disposition made in such Fiscal Year which is reinvested in Equipment within 90 days of such sale or other disposition);
(d) for all other sales of stores by a Borrower or Xxxxx Xxxxx Canada having an aggregate book value not to exceed $5,000,000 during the term of this Agreement;
(e) for the sale or other disposition for cash of a registered trademark or application for registration of a trademark (other than a material trademark) that the applicable Loan Parties; providedParty determines, in the exercise of good business judgment, is no lo nger beneficial, appropriate or consistent with such Loan Party’s merchandise assortment or brand image (it being agreed by the parties hereto that within 150 days following any “CW”, “Xxxxxxxx & Xxxxx” and related trademarks and logos shall not be deemed to be material trademarks). Following each such Equipment sale or disposition, such Loan Party or Subsidiary, as the case may be, shall either (i) make Capital Expenditures permitted hereunder with the apply such proceeds of such sale or disposition in other Equipment first, to satisfy any debt that is secured by a lien (other than the Agent’s Lien) encumbering such asset which is superior in priority to the Agent’s, and second, to the Loans in accordance with Section 4.5. All Equipment purchased with such proceeds shall be free and clear of all Liens Liens, except the Agent's ’s Liens and other Permitted Liens (except those Permitted Liens under clauses clause (h) and (ji) of such defined term or (ii) apply such proceeds in accordance with Section 3.3(aterm);
(iv) the sale by Foamex of its Milan, Tennessee facility;
(A) the merger of any wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) with or into another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) in one or a series of transactions to another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), (B) the merger of any wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) into such Borrower or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) in one or a series of transactions to such Borrower; provided, that in the case of a merger, the surviving Person is a Borrower, and if Foamex is a party to such a merger, the surviving Person is Foamex and (C) the merger of any wholly-owned Subsidiary of a Mexican Subsidiary with or into a Mexican Subsidiary or of one Mexican Subsidiary with or into another Mexican Subsidiary or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a Mexican Subsidiary or a wholly-owned Subsidiary of a Mexican Subsidiary in one or a series of transactions to a Mexican Subsidiary;
(vi) transfers or other dispositions of Equipment by Foamex or any of its Domestic Subsidiaries to the China Joint Venture in connection with the Foamex China Transaction, but solely to the extent permitted by clause (m) of the defined term Restricted Investment;
(vii) the leases and subleases existing on the Closing Date set forth on Schedule 7.11(vii);
(viii) leases and subleases of property by such Loan Party which in the aggregate for all Loan Parties do not provide for net rental payments to the Loan Parties in excess of $250,000 in the aggregate in any Fiscal Year;
(ix) the sale by Foamex of its LaPorte, Indiana facility and its facilities located in Elkhart, Indiana at 0000 Xxxxxx Xxxx and 000 Xxxxxxxxxx Xxxxxxx; provided, that in each case, the Net Proceeds received by Foamex in respect of such sale at the time such sale is consummated shall not be less than the sum of (i) 50% of the fair market value of the Real Estate in such facility included in such sale, as set forth in the then most recent Real Estate Appraisal delivered to the Administrative Agent and (ii) 80% of the orderly liquidation value of the Equipment of Foamex at such facility included in such sale, as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent;
(x) sales by Foamex or any of its Domestic Subsidiaries to Foamex Canada of Equipment no longer used in the U.S. operations of Foamex or any of its Domestic Subsidiaries; provided, that Foamex or the applicable Domestic Subsidiary shall receive Net Proceeds in respect of each such sale at the time such sale is consummated in an amount no less than 80% of the orderly liquidation value of such Equipment being sold as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent (or, if such Equipment being sold is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment);
(xi) the license by Foamex of its patented surface modification technology to JPS Automotive L.P. and the lease of certain of its Equipment not in excess of a net book value of $500,000 to JPS Automotive L.P. associated with the use of such license;
(xii) sales or other dispositions of assets of any of the Mexican Subsidiaries;
(xiii) contributions of assets by a Loan Party (other than the Parent or FMXI) or a Mexican Subsidiary, either directly or through another Loan Party (other than the Parent or FMXI) or Mexican Subsidiary, solely to the extent described in clause (h) or (m) of the defined term Restricted Investment; and
(xivf) other sales of assets (other than Accounts, Inventory, Equipment included in the then most recent Equipment Appraisal delivered to the Administrative Agent Inventory or Real Estate included Estate) in the then most recent Real Estate Appraisal delivered to the Administrative Agent) for an aggregate sales price amount for all Loan Parties and their Subsidiaries not to exceed $10,000 in any Fiscal Year; provided, that 5,000,000 during the consideration received by the applicable Loan Party in respect term of any such sale shall only be in cash.this Agreement;
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Samples: Loan and Security Agreement
Mergers, Consolidations or Sales. Neither such Loan Party nor any of the Mexican Subsidiaries shall enter into any transaction of merger, reorganization or consolidation, or transfer, sell, assign, lease or otherwise dispose of all or any part of its property, or sell or issue any of its equity interests, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except for:
(i) sales of Inventory, licensing of Proprietary Rights, sales of services and dispositions of Restricted Investments of the type described in clauses (d), (e) or (f) of the definition thereof, in each case in the ordinary course of its business; provided, that (A) sales of Inventory by a Borrower or Foamex Canada shall not be permitted to be made to the Parent, FMXI or any Foreign Subsidiaries other than Foamex Canada, Foamex Asia Co., Ltd. or any of the Mexican Subsidiaries and such sales shall only be permitted if made on an arm's-length basis in the ordinary course of business on customary trade terms and so long as the aggregate amount of Accounts of the Borrowers and Foamex Canada outstanding in connection with such sales shall not exceed at any time $4,000,000 and (B) licensing of Proprietary Rights and sales of services shall only be permitted if made on an arm's-length basis;
(ii) if required by applicable law, the sale of capital stock of any Foreign Subsidiary of a Loan Party in order to qualify members of the governing body of such Subsidiary;
(iii) sales or other dispositions of Equipment by (A) any of the Mexican Subsidiaries and (B) one or more Loan Parties in the ordinary course of business with an orderly liquidation value (as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent or, if such Equipment being disposed of is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent and (x) has a net book value in excess of $250,000, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment or (y) has a net book value of $250,000 or less, the orderly liquidation value of such Equipment shall be deemed to equal the then net book value of such Equipment) not to exceed $500,000 in the aggregate in any Fiscal Year for all of the Loan Parties; provided, that within 150 days following any such Equipment sale or disposition, such Loan Party shall either (i) make Capital Expenditures permitted hereunder with the proceeds of such sale or disposition in other Equipment that is free and clear of all Liens except the Agent's Liens and Permitted Liens under clauses (h) and (j) of such defined term or (ii) apply such proceeds in accordance with Section 3.3(a3.4(a);
(iv) the sale by Foamex of its Milan, Tennessee facility;
(A) the merger of any wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) with or into another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower) in one or a series of transactions to another wholly-owned Domestic Subsidiary of Foamex (other than a wholly-owned Domestic Subsidiary that is a Borrower), (B) the merger of any wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) into such Borrower or the liquidation, winding up or dissolution of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower), or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a wholly-owned Domestic Subsidiary of a Borrower (other than a wholly-owned Domestic Subsidiary that is itself a Borrower) in one or a series of transactions to such Borrower; provided, that in the case of a merger, the surviving Person is a Borrower, and if Foamex is a party to such a merger, the surviving Person is Foamex and (C) the merger of any wholly-owned Subsidiary of a Mexican Subsidiary with or into a Mexican Subsidiary or of one Mexican Subsidiary with or into another Mexican Subsidiary or the conveyance, sale, lease, transfer or other disposition of all or any part of the business, property or assets of a Mexican Subsidiary or of a wholly-owned Subsidiary of a Mexican Subsidiary in one or a series of transactions to a Mexican Subsidiary;
(vi) transfers or other dispositions of Equipment by Foamex or any of its Domestic Subsidiaries to the China Joint Venture in connection with the Foamex China Transaction, but solely to the extent permitted by clause (m) of the defined term Restricted Investment;
(vii) the leases and subleases existing on the Closing Date set forth on Schedule 7.11(vii);
(viii) leases and subleases of property by such Loan Party which in the aggregate for all Loan Parties do not provide for net rental payments to the Loan Parties in excess of $250,000 in the aggregate in any Fiscal Year;
(ix) the sale by Foamex of its LaPorte, Indiana facility and its facilities located in Elkhart, Indiana at 0000 Xxxxxx Xxxx and 000 Xxxxxxxxxx Xxxxxxx; provided, that in each case, the Net Proceeds received by Foamex in respect of such sale at the time such sale is consummated shall not be less than the sum of (i) 50% of the fair market value of the Real Estate in such facility included in such sale, as set forth in the then most recent Real Estate Appraisal delivered to the Administrative Agent and (ii) 80% of the orderly liquidation value of the Equipment of Foamex at such facility included in such sale, as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent;
(x) sales by Foamex or any of its Domestic Subsidiaries to Foamex Canada of Equipment no longer used in the U.S. operations of Foamex or any of its Domestic Subsidiaries; provided, that Foamex or the applicable Domestic Subsidiary shall receive Net Proceeds in respect of each such sale at the time such sale is consummated in an amount no less than 80% of the orderly liquidation value of such Equipment being sold as set forth in the then most recent Equipment Appraisal delivered to the Administrative Agent (or, if such Equipment being sold is not included in the then most recent Equipment Appraisal delivered to the Administrative Agent, based upon evidence satisfactory to the Administrative Agent of the orderly liquidation value of such Equipment);
(xi) the license by Foamex of its patented surface modification technology to JPS Automotive L.P. and the lease of certain of its Equipment not in excess of a net book value of $500,000 to JPS Automotive L.P. associated with the use of such license;
(xii) sales or other dispositions of assets of any of the Mexican Subsidiaries;
(xiii) contributions of assets by a Loan Party (other than the Parent or FMXI) or a Mexican Subsidiary, either directly or through another Loan Party (other than the Parent or FMXI) or Mexican Subsidiary, solely to the extent described in clause (h) or (m) of the defined term Restricted Investment; and
(xiv) other sales of assets (other than Accounts, Inventory, Equipment included in the then most recent Equipment Appraisal delivered to the Administrative Agent or Real Estate included in the then most recent Real Estate Appraisal delivered to the Administrative Agent) for an aggregate sales price for all Loan Parties not to exceed $10,000 in any Fiscal Year; provided, that the consideration received by the applicable Loan Party in respect of any such sale shall only be in cash.
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