Mergers, Consolidations or Sales. Neither the Parent nor any of the other Borrowers shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or any material part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except for: (a) sales of Inventory in the ordinary course of its business, (b) sales or other dispositions of Equipment in the ordinary course of business that are obsolete or no longer useable by such Borrower in its business with an orderly liquidation value not to exceed $10,000,000 in any Fiscal Year, (c) sales or other dispositions of Borrowers' patents and trademarks in an aggregate sale price not to exceed $20,000,000 during the period beginning on the Closing Date and ending on the Maturity Date, (d) sales or other dispositions of assets by Borrowers that have been approved by the Agent prior to the Closing Date and which are set forth on Schedule 7.9, provided (i) in the case of sales or other dispositions of Designated Collateral, no Default or Event of Default then exists, the net proceeds received as a result of such sale are greater than net tangible book value of the assets so sold and the Net Cash Proceeds are allocated and paid as required by the Intercreditor Agreement, and (ii) in the case of dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or other disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement, (e) dissolutions of Subsidiaries that are not Borrowers and dissolutions of R & B and M M & E in accordance with the provisions of Section 7.2, (f) sales or other dispositions of assets not in the ordinary course of business provided (i) in the case of sales or other dispositions of Designated Collateral, (A) no Default or Event of Default then exists, (B) the net sales proceeds received from such sale or sales exceeds net tangible book value, (C) the proceeds received in the aggregate from all such sales do not exceed $10,000,000 in any Fiscal Year and do not exceed $25,000,000 during the term of this Agreement, and (D) the Net Cash Proceeds received are distributed or applied for the benefit of the Lenders and the Revolver Agent, in accordance with the provisions of the Intercreditor Agreement, and (ii) in the case of sales or other dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement, (g) Parent and the other Borrowers may enter into licensing agreements in the ordinary course of business provided they are consistent with reasonable business practices, (h) sale and leaseback transactions permitted pursuant to Section 7.19, and (i) leases, in the ordinary course of Borrowers' business, of the Real Estate, provided, no Default or Event of Default then exists and after giving effect to such lease, no material portion of the Inventory or Equipment is located on the leased premises unless Agent has received estoppel letters governing access to the leased premises and containing such other assurances as Agent shall deem reasonably necessary.
Appears in 2 contracts
Samples: Loan Agreement (Unova Inc), Loan Agreement (Unitrin Inc)
Mergers, Consolidations or Sales. Neither the Parent any Obligor nor any of the other Borrowers Subsidiary shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or any material part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoingforegoing (collectively, except for“Asset Dispositions”), except:
(a) for sales of Inventory in the ordinary course of its business,
(b) for sales or other dispositions of items of Equipment or other Fixed Assets in the ordinary course of business that are obsolete or no longer useable by such Borrower the Obligors in its their business with an orderly liquidation value not to exceed $10,000,000 2,500,000 in the aggregate in any Fiscal Year,
(c) sales the issuance of equity securities (excluding equity securities which require mandatory redemption or other dispositions of Borrowers' patents and trademarks repurchase by PSS except at a time when all Obligations have been repaid in an aggregate sale price not to exceed $20,000,000 during the period beginning on the Closing Date and ending on the Maturity Datefull) by PSS,
(d) sales of Cash Equivalents and investments described under clauses (d) through (j), (l), (n) and (q) of the definition of Restricted Investments, in each case for fair value,
(e) Asset Dispositions resulting from casualties and condemnations,
(f) Asset Dispositions among Obligors,
(g) Asset Dispositions of Equipment or other dispositions Fixed Assets of assets by Borrowers that have been approved by the Agent prior to the Closing Date and an Obligor or Subsidiary which are set forth on Schedule 7.9will be replaced or upgraded with Equipment or other Fixed Assets, provided that (i) in the case of sales such replaced or other dispositions of Designated Collateral, no Default upgraded Equipment and Fixed Assets are acquired (or Event of Default then exists, the net proceeds received as a result of firm order therefore is placed) within 180 days after such sale are greater than net tangible book value of the assets so sold and the Net Cash Proceeds are allocated and paid as required by the Intercreditor Agreementdisposition, and (ii) the book value of all property disposed of pursuant to this clause (g) does not exceed $2,500,000 in the case aggregate in any Fiscal Year,
(h) if no Event of dispositions Default exists, mergers or consolidations of Revolver Lender Collateralany Subsidiary into an Obligor where such Obligor is the surviving entity,
(i) mergers or consolidations of any Subsidiary of an Obligor with any Person (other than an Obligor) in order to effectuate a Permitted Acquisition if (i) such Subsidiary shall be the surviving entity, and (ii) the Net Cash Proceeds Obligors comply with the requirements set forth in the definition of such Permitted Acquisition,
(j) if no Event of Default exists, dissolutions, liquidations and winding-ups of any Subsidiary of a Borrower that is not an Obligor,
(k) any asset or stock sale or other disposition are utilized not related to the core business of the Borrowers conducted on the Closing Date so long as such assets were acquired by the Borrowers or applied a Subsidiary pursuant to a Permitted Acquisition and the aggregate proceeds of all such sales and dispositions do not exceed $5,000,000 in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreementany Fiscal Year,
(el) dissolutions sales of Subsidiaries that are not Borrowers assets in connection with any sale and dissolutions of R & B and M M & E in accordance with the provisions of leaseback transaction permitted under Section 7.27.19,
(fm) sales the sale, lease, transfer, assignment or other dispositions disposition of assets (other than in connection with a casualty or condemnation or a securitization transaction) of the Borrowers or any of their Subsidiaries to any other Person so long as the consideration received consists of cash and the fair market value of all property disposed of pursuant to this clause (m) does not exceed $5,000,000 in the ordinary course aggregate in any Fiscal Year, and
(n) any other sale, lease, transfer, assignment or other disposition of business assets, provided that (i) in the case of sales consideration therefore is at least 75% cash or Cash Equivalents, (ii) such transaction does not involve the sale or other dispositions disposition of Designated Collaterala minority equity interest in any Obligor or a securitization transaction, (Aiii) the aggregate net book value of all the assets sold or otherwise disposed of by the Obligors in all such transactions in reliance on this clause (n) shall not exceed $10,000,000 in any Fiscal Year, and (iv) no Default or Event of Default then exists, (B) the net sales proceeds received from such sale shall have occurred and be continuing immediately before or sales exceeds net tangible book value, (C) the proceeds received in the aggregate from all such sales do not exceed $10,000,000 in any Fiscal Year and do not exceed $25,000,000 during the term of this Agreement, and (D) the Net Cash Proceeds received are distributed or applied for the benefit of the Lenders and the Revolver Agent, in accordance with the provisions of the Intercreditor Agreement, and (ii) in the case of sales or other dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,
(g) Parent and the other Borrowers may enter into licensing agreements in the ordinary course of business provided they are consistent with reasonable business practices,
(h) sale and leaseback transactions permitted pursuant to Section 7.19, and
(i) leases, in the ordinary course of Borrowers' business, of the Real Estate, provided, no Default or Event of Default then exists and after giving effect to such leasetransaction and, no material portion whether or not the Borrowers are at the time of such transaction required to comply with the financial covenants in Section 7.23, the Borrowers shall have delivered to the Agent a certificate demonstrating that, upon giving effect on a pro forma basis to such transaction (such financial covenants shall be measured as of the Inventory or Equipment is located most recently ended fiscal month for the twelve fiscal month period then ended and shall be calculated as if such Asset Disposition had been consummated on the leased premises unless Agent has received estoppel letters governing access first day of such twelve fiscal month period), the Borrowers will be in compliance with such covenants. All proceeds of Asset Dispositions shall be applied to the leased premises and containing such other assurances as Agent shall deem reasonably necessaryObligations in accordance with Section 3.6.
Appears in 2 contracts
Samples: Credit Agreement (PSS World Medical Inc), Credit Agreement (PSS World Medical Inc)
Mergers, Consolidations or Sales. Neither the Parent nor any of the other Borrowers its Subsidiaries shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or any material part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except forexcept:
(ai) for sales of Inventory in the ordinary course of its business,;
(bii) for sales or other dispositions of Equipment and Proprietary Rights in the ordinary course of business that are obsolete or no longer useable usable by such the Borrower or Parent in its business with an orderly liquidation value not to exceed $10,000,000 in any Fiscal Year,as permitted by Section 6.11;
(ciii) sales for transactions which are part or other dispositions all of Borrowers' patents and trademarks in an aggregate sale price not to exceed $20,000,000 during the period beginning on the Closing Date and ending on the Maturity Date,Divestiture; 105
(div) sales or [Intentionally Omitted];
(v) that, in additio to any of the other dispositions clauses of assets by Borrowers that have been approved by the Agent prior to the Closing Date and which are set forth on Schedule 7.9this Section 9.9, provided (i) in the case of sales or other dispositions of Designated Collateral, so long as no Default or Event of Default then exists, the Borrower and its Subsidiaries may (A) sell other assets which do not constitute Secured Sale/Leaseback Collateral at fair market value (determined in good faith by the Board of Directors of the Borrower) in the ordinary course of business, provided that (1) the gross proceeds thereof shall consist of at least 75% in cash or Cash Equivalents, (2) the aggregate net cash proceeds from which shall not exceed $200,000 per sale so long as all such net cash proceeds do not exceed $1,000,000 in any Fiscal Year and (3) the aggregate gross cash proceeds received by the Borrower with respect to Accounts and Inventory, if any, included as a result part of such sale are greater shall be in an amount not less than net tangible the then book value of all such Accounts and Inventory as shown on a balance sheet of the assets so sold and the Net Cash Proceeds are allocated and paid as required by the Intercreditor Agreement, and (ii) in the case of dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or other disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,
(e) dissolutions of Subsidiaries that are not Borrowers and dissolutions of R & B and M M & E Borrower prepared in accordance with GAAP or (B) sell assets which constitute Secured Sale/Leaseback Collateral at fair market value (determined in good faith by the provisions Board of Section 7.2,Directors of the Borrower), provided that (1) the gross proceeds thereof shall consist of at least 75% in cash or Cash Equivalents and (2) the aggregate net cash proceeds from which shall not exceed $3,000,000 in any Fiscal Year and shall not exceed $15,000,000 in the aggregate during the term of this Agreement (from the Original Closing Date);
(fvi) sales that investments or other dispositions of assets not transfers or sales may be made to the extent expressly permitted by Section 9.10;
(vii) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and only to non-Affiliated Persons, in the ordinary course of business provided (i) ineligible accounts receivable arising in the case ordinary course of sales business, but only in connection with the compromise or other dispositions collection thereof consistent with customary industry practice (and not as part of Designated Collateralany bulk sale or financing receivables); provided, that (A) the account debtor thereon is no Default longer a customer of the Borrower or Event any of Default then exists, its Subsidiaries and no other accounts receivable which are Eligible Accounts are owing by such account debtor to the Borrower or any of its Subsidiaries and (B) the net sales gross proceeds received from such any sale or sales exceeds net tangible book value, (C) the proceeds received in the aggregate from all such sales do not exceed $10,000,000 in any Fiscal Year and do not exceed $25,000,000 during the term of this Agreement, and (D) the Net Cash Proceeds received are distributed or applied for the benefit of the Lenders and the Revolver Agent, in accordance with the provisions of the Intercreditor Agreement, and (ii) in the case of sales or other dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or disposition are utilized or applied shall be immediately deposited in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,lockbox account pursuant to Section 6.9;
(gviii) Parent and the other Borrowers may enter into licensing agreements for licenses of Proprietary Rights (x) in the ordinary course of business provided they are or (y) to Lily Cup consistent with reasonable business past practices,;
(hix) sale and leaseback transactions permitted for the Sherwood-Related Mergers pursuant to Section 7.19the Sherwood-Related Merger Documents; provided that (a) the Agent shall have received such UCC financing statements, and
intellectual property assignments and other collateral documentation duly executed by the Borrower as the Agent shall have requested with respect to the perfection of Liens in certain assets of Sherwood and its Subsidiaries; (ib) leasesthe Agent shall have received such UCC and other collateral releases in form and substance satisfactory to the Agent with respect to all Liens on the assets of Sherwood and its Subsidiaries (other than 106 Permitted Liens); (c) the Agent shall have received evidence in form and substance satisfactory to the Agent of all necessary corporate proceedings of the Borrower, Sherwood and its Subsidiaries to duly authorize the execution, delivery and performance of the Sherwood-Related Merger Documents and of all necessary consents to permit the execution, delivery and performance thereof; (d) the Agent shall have received landlord waivers in form and substance satisfactory to the Agent with respect to the premises leased by Sherwood or any of its Subsidiaries; (e) the Agent shall have received a blocked account agreement, in form and substance satisfactory to the ordinary course of Borrowers' businessAgent, of duly executed by PNC; (f) the Real Estate, provided, no Default or Event of Default then exists and Agent shall have received a Borrowing Base Certificate duly executed by the Borrower after giving effect to the Sherwood-Related Mergers; and (g) the Agent shall have received such leaseother documents as the Agent or any Lender may reasonably request in connection with the Sherwood-Related Mergers or the transactions related thereto;
(x) for the sale by the Borrower on the Closing Date of Equipment (other than Credit Agreement Term Loan Equipment Collateral) pursuant to the Secured Sale/Leaseback Documents, which documents shall be in form and substance reasonably satisfactory to the Agent and the Majority Lenders; provided that (A) the Agent shall have received the Intercreditor Agreement duly executed by State Street Bank and Trust Company of Connecticut, National Association, as owner trustee/lessor, the Borrower and Parent, and (B) the Borrower shall have received on the date of such sale net cash proceeds from such sale of no material portion less than $212,300,000 and such net cash proceeds shall have been applied by the Borrower (w) together with the proceeds of the Inventory or Equipment is located on the leased premises unless Agent has received estoppel letters governing access Term Loans, to the leased premises redemption of all Senior Secured Notes (other than accrued interest thereon, which interest shall be paid with the proceeds of Revolving Loans), (x) to the payment in full of all loans and containing other monetary obligations of Sherwood and/or any of its affiliates under the financing arrangements between one or more of such entities, certain lenders and PNC, as agent for such lenders, (y) to the payment in full of the Demand Loans, and (z) to the payment of the Revolving Loans (in an amount not less than $25,000,000); and
(xi) that, with the prior written consent of the Majority Lenders, any other assurances assets may be sold or transferred. Except in the case of the transfer of assets between or among Parent and any of its Subsidiaries (the foregoing not constituting a consent to any such transfer except as expressly permitted hereunder and in which case if so permitted there shall be no release of Collateral, and all steps deemed necessary or, in the reasonable opinion of the Agent or the Majority Lenders, desirable to maintain the priority and perfection of the security interests of the Agent in the Collateral shall deem reasonably necessarybe taken in connection therewith), to the extent any Collateral is sold as expressly permitted by this Section 9.9, such Collateral shall be sold free and clear of the Liens created by any of the Loan Documents (so long as such Collateral is also sold free and clear of the Liens created by the documents granting collateral security for the payment of the obligations of the Borrower or Parent under the Secured Sale/Leaseback Documents, and, subject to the terms of 107 the Intercreditor Agreement, the net cash proceeds from such sale are deposited in the lock-box accounts referred to in Section 6.9(a) or in a Payment Account or, if applicable, applied to the Obligations in accordance with Section 4.5(b); nothing contained in this paragraph constituting a release of any of the Liens created by any of the Loan Documents in the proceeds of such sale), and in such event all Exhibits and Schedules hereto or to any of the other Loan Documents evidencing a present or prospective interest of Parent or its Subsidiaries in such Collateral shall be deemed amended automatically (without any consent or notice) to reflect such sale. In case of any release as described in the immediately preceding sentence (including any release with respect to the sale of Equipment permitted by clause (x) above), the Agent is hereby authorized and directed to take such action as may be deemed necessary or desirable by it to effect the release.
Appears in 1 contract
Samples: Loan and Security Agreement (Sweetheart Holdings Inc \De\)
Mergers, Consolidations or Sales. Neither the Parent nor any of the other Borrowers shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or any material part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except for:
(a) sales of Inventory in the ordinary course of its business,;
(b) sales or other dispositions of Equipment in the ordinary course of business that are obsolete or no longer useable by such Borrower in its business with an orderly liquidation value not to exceed $10,000,000 in any Fiscal Year,;
(c) sales or other dispositions of Borrowers' patents and trademarks in an aggregate sale price not to exceed $20,000,000 during the period beginning on the Closing Date and ending on the Maturity Stated Termination Date,;
(d) sales or other dispositions of assets by Borrowers that have been approved by the Agent Co-Agents prior to the Closing Date and which are set forth on Schedule 7.9, provided (i) in the case of sales or other dispositions of Designated CollateralAssets other than Fixed Assets, no Default or Event of Default then exists, the net proceeds received as a result of such sale are greater than net tangible book value of the assets so sold and the Net Cash Proceeds net sales proceeds are allocated and paid as required by the Intercreditor Agreement, Agreement and (ii) in the case of dispositions of Revolver Lender CollateralFixed Assets, the Net Cash Proceeds cash proceeds of such sale or other disposition (net of closing costs, fees and expenses and an amount equal to the tax liabilities arising as a result of any gain associated with such sale or disposition) are utilized or applied in a manner not prohibited by this Agreement, to reduce permanently the Revolving Credit Documents, or outstanding principal amount of the Intercreditor Agreement,
(e) dissolutions of Subsidiaries that are not Borrowers and dissolutions of R & B and M M & E Term Loans in accordance with the provisions of Section 7.2,
(f) sales or other dispositions of assets not in the ordinary course of business provided (i) in the case of sales or other dispositions of Designated Collateral, (A) no Default or Event of Default then exists, (B) the net sales proceeds received from such sale or sales exceeds net tangible book value, (C) the proceeds received in the aggregate from all such sales do not exceed $10,000,000 in any Fiscal Year and do not exceed $25,000,000 during the term of this Agreement, and (D) the Net Cash Proceeds received are distributed or applied for the benefit of the Lenders and the Revolver Agent, in accordance with the provisions terms of the Intercreditor Agreement, and (ii) in the case of sales or other dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,
(g) Parent Agreement and the other Borrowers may enter into licensing agreements in the ordinary course of business provided they are consistent with reasonable business practices,
(h) sale and leaseback transactions permitted pursuant to Section 7.19, and
(i) leases, in the ordinary course of Borrowers' business, terms of the Real Estate, provided, no Default or Event of Default then exists and after giving effect to such lease, no material portion of documents evidencing the Inventory or Equipment is located on the leased premises unless Agent has received estoppel letters governing access to the leased premises and containing such other assurances as Agent shall deem reasonably necessary.Term Loans;
Appears in 1 contract
Samples: Credit Agreement (Unova Inc)
Mergers, Consolidations or Sales. Neither the Parent any Obligor nor any of the other Borrowers Subsidiary shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or any material part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoingforegoing (collectively, except for“Asset Dispositions”), except:
(a) for sales of Inventory in the ordinary course of its business,;
(b) for sales or other dispositions of items of Equipment or other Fixed Assets in the ordinary course of business that are obsolete or no longer useable by the Obligors in their business; provided, that, within 120 days following each such Borrower sale or disposition, the Obligors shall either (i) reinvest the proceeds of that sale or disposition in its business other Equipment or Fixed Assets or (ii) apply such proceeds to the Loans in accordance with an orderly liquidation value not to exceed $10,000,000 in any Fiscal Year,Section 3.3(a) and (c);
(c) for sales or other dispositions of Borrowers' patents the Listed Mill Assets; provided, that, within 120 days following such sale or disposition, the Obligors shall either (i) reinvest the proceeds of such sale or disposition in Fixed Assets or (ii) apply such proceeds to the Loans in accordance with Section 3.3(a) and trademarks in an aggregate sale price not to exceed $20,000,000 during the period beginning on the Closing Date and ending on the Maturity Date,(c);
(d) for sales or other dispositions of the Obligors’ Cleveland, Ohio recovered fiber business on substantially the terms disclosed to the Agent and the Lenders prior to the Agreement Date or otherwise on terms not materially less favorable to the Obligors or the Lenders; provided, that, (i) no Event of Default exists immediately before or after such sale or disposition, (ii) the Obligors shall have provided the Agent at least 10 days notice of the proposed sale or disposition, (iii) if any of the assets sold or disposed of pursuant to this clause (d) consist of Accounts or Inventory, then, on the date of such sale or disposition, the Obligors shall prepay the Obligations in an amount at least equal to the net book value of such Accounts and Inventory in accordance with Section 3.3(a) from the net proceeds of such sale or disposition and provide the Agent an updated Borrowing Base Certificate giving effect to such sale or disposition, and (iv) within 120 days following each such sale or disposition, the Obligors shall either (A) reinvest the remaining proceeds of such sale or disposition in Fixed Assets or other assets useful in their business, or (B) apply such remaining proceeds to the Loans in accordance with Section 3.3(a) and (c);
(e) for sales or other dispositions of assets by Borrowers that have been approved by outside the Agent prior to the Closing Date and which are set forth on Schedule 7.9ordinary course of business; provided, provided that, (i) in the case of sales or other dispositions of Designated Collateral, no Default or Event of Default then existsexists immediately before or after such sale or disposition, (ii) the net proceeds received as a result of such sale are greater than net tangible book value of the assets so subject to such sale or disposition, when aggregated with the net book value of all other assets sold or disposed of pursuant to this clause (e), shall not exceed $5,000,000, (iii) the Obligors shall have provided the Agent at least 10 days notice of the proposed sale or disposition, together with the material terms and conditions thereof, (iv) if any of the Net Cash Proceeds are allocated and paid as required by assets sold or disposed of pursuant to this clause (e) consist of Accounts or Inventory, then, on the Intercreditor Agreement, and (ii) in the case of dispositions of Revolver Lender Collateral, the Net Cash Proceeds date of such sale or other disposition are utilized or applied in a manner not prohibited by this Agreementdisposition, the Revolving Credit Documents, or Obligors shall prepay the Intercreditor Agreement,
(e) dissolutions Obligations in an amount at least equal to the net book value of Subsidiaries that are not Borrowers such Accounts and dissolutions of R & B and M M & E Inventory in accordance with the provisions of Section 7.2,
(f3.3(a) sales or other dispositions of assets not in the ordinary course of business provided (i) in the case of sales or other dispositions of Designated Collateral, (A) no Default or Event of Default then exists, (B) from the net sales proceeds received from such sale or sales exceeds net tangible book value, (C) the proceeds received in the aggregate from all such sales do not exceed $10,000,000 in any Fiscal Year and do not exceed $25,000,000 during the term of this Agreement, and (D) the Net Cash Proceeds received are distributed or applied for the benefit of the Lenders and the Revolver Agent, in accordance with the provisions of the Intercreditor Agreement, and (ii) in the case of sales or other dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or disposition are utilized or applied in a manner not prohibited by this Agreement, and provide the Revolving Credit Documents, or the Intercreditor Agreement,
(g) Parent and the other Borrowers may enter into licensing agreements in the ordinary course of business provided they are consistent with reasonable business practices,
(h) sale and leaseback transactions permitted pursuant to Section 7.19, and
(i) leases, in the ordinary course of Borrowers' business, of the Real Estate, provided, no Default or Event of Default then exists and after Agent an updated Borrowing Base Certificate giving effect to such leasesale or disposition, no material portion and (v) within 120 days following each such sale or disposition, the Obligors shall either (A) reinvest the remaining proceeds of the Inventory such sale or Equipment is located on the leased premises unless Agent has received estoppel letters governing access disposition in Fixed Assets or other assets useful in their business, or (B) apply such remaining proceeds to the leased premises Loans in accordance with Section 3.3(a) and containing (c); and
(f) if no Event of Default exists, (i) dissolutions, liquidations and winding-ups of any Subsidiary of a Borrower that is not an Obligor, (ii) mergers and consolidations of (A) any Borrower with another Borrower, (B) any Guarantor with another Guarantor, and (C) any Guarantor with a Borrower so long as such other assurances as Agent shall deem reasonably necessaryBorrower is the surviving entity, and (iii) transfers and sales of assets from (A) any Borrower to another Borrower, (B) any Guarantor to another Guarantor, and (C) any Guarantor to a Borrower.
Appears in 1 contract
Mergers, Consolidations or Sales. Neither the Parent Fleetwood nor any of the other Borrowers its Subsidiaries shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or any material part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except for:except
(a) sales of Inventory in the ordinary course of its business,;
(b) sales or other dispositions of Equipment in the ordinary course of business that are obsolete or no longer useable by such Borrower the applicable Person in its business with an orderly liquidation value not to exceed $10,000,000 1,000,000 in any Fiscal Year,;
(c) sales or on no less than 10 days' prior notice to the Agent, any FMC Borrower may merge with and into any other dispositions FMC Borrower and any FRC Borrower may merge with and into any other FRC Borrower, PROVIDED, HOWEVER, that all Liens of Borrowers' patents the Agent shall remain unimpaired, and trademarks in an aggregate sale price not the surviving Borrower shall execute and deliver to exceed $20,000,000 during the period beginning on Agent such documents and agreements as the Closing Date Agent may reasonably request to evidence the continued liability for the Obligations of the disappearing Borrower and ending on the Maturity Date,Liens securing such Obligations;
(d) sale of the Term Loan Collateral for at least fair market value, PROVIDED, HOWEVER, that (x) the sales or other dispositions of assets by Borrowers that have been approved by the Agent prior to the Closing Date and which are set forth on Schedule 7.9, provided price for (i) any Term Loan Collateral specifically identified on SCHEDULE 1.4 must be greater than the amount for such Term Loan Collateral set forth in the case column labeled "Minimum Price" on such SCHEDULE 1.4, and (ii) any other Term Loan Collateral consisting of sales or other dispositions Fixed Assets must be greater than sixty percent (60%) of Designated the appraised orderly liquidation value for such Term Loan Collateral; and (y) all proceeds shall be in cash and shall be applied to repay the Loans as required by SECTION 3.4(c);
(e) sale for fair market value of the assets described on SCHEDULE 7.9 as "Assets held for Sale" if (1) at least 50% of the proceeds are received in cash and applied to the Obligations in accordance with SECTION 3.4 and any non-cash consideration received by any Loan Party shall constitute additional Collateral hereunder, in which the Agent shall have a duly perfected Lien; and (2) after giving effect to such disposition, no Default or Event of Default then exists, the net proceeds received as a result of such sale are greater than net tangible book value of the assets so sold and the Net Cash Proceeds are allocated and paid as required by the Intercreditor Agreement, and (ii) in the case of dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or other disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,;
(ef) dissolutions of Subsidiaries that are not Borrowers and dissolutions of R & B and M M & E an FRC Borrower may transfer Inventory at the locations set forth on SCHEDULE 7.9 as "ADI Locations" to ADI in accordance with the provisions of Section 7.2,
(f) sales or other dispositions of ADI Agreement if 45 FRC receives payment for such assets not in the ordinary course of business provided (i) in the case of sales or other dispositions of Designated Collateral, (A) no Default or Event of Default then exists, (B) the net sales proceeds received from such sale or sales exceeds net tangible book value, (C) the proceeds received in the aggregate from all such sales do not exceed $10,000,000 in any Fiscal Year and do not exceed $25,000,000 during the term of this Agreement, and (D) the Net Cash Proceeds received are distributed or applied for the benefit of the Lenders and the Revolver Agent, in accordance with the provisions ADI Agreement and applies such proceeds to the Obligations of the Intercreditor Agreement, and (ii) FRC in the case of sales or other dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,accordance with SECTION 3.4;
(g) Parent any Excluded Subsidiary may be wound up and the other Borrowers may enter into licensing agreements in the ordinary course of business provided they are consistent with reasonable business practices,dissolved; and
(h) sale and sale/leaseback transactions with respect to Real Estate and Equipment permitted pursuant to Section by SECTION 7.19, and
(i) leases, in the ordinary course of Borrowers' business, of the Real Estate, provided, no Default or Event of Default then exists and after giving effect to such lease, no material portion of the Inventory or Equipment is located on the leased premises unless Agent has received estoppel letters governing access to the leased premises and containing such other assurances as Agent shall deem reasonably necessary.
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Mergers, Consolidations or Sales. Neither the Parent Fleetwood nor any of the other Borrowers its Subsidiaries shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or any material part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except for:except
(a) sales of Inventory in the ordinary course of its business,;
(b) sales sales, trade-ins, exchanges or other dispositions of Equipment in the ordinary course of business that are obsolete or no longer used or useable by such Borrower the applicable Person in its business with an orderly liquidation value not to exceed $10,000,000 5,000,000 in any Fiscal Year,;
(c) sales or on no less than 10 days’ prior notice to the Agent (unless a shorter period is acceptable to the Agent in its sole discretion), any FMC Borrower may merge with and into any other dispositions FMC Borrower and any FRC Borrower may merge with and into any other FRC Borrower, provided, however, that all Liens of Borrowers' patents the Agent shall remain unimpaired, and trademarks in an aggregate sale price not the surviving Borrower shall execute and deliver to exceed $20,000,000 during the period beginning on Agent such documents and agreements as the Closing Date Agent may reasonably request to evidence the continued liability for the Obligations of the disappearing Borrower and ending on the Maturity Date,Liens securing such Obligations;
(d) sales sales, trade-ins, exchanges or other dispositions of assets by Borrowers that have been approved Fleetwood or any of its Subsidiaries (other than Term Loan Collateral or any other real property Collateral) with an orderly liquidation value not to exceed $5,000,000 in the aggregate for the period commencing on the First Amendment and Restatement Date through and including the Termination Date;
(e) sale for fair market value of the assets described on Schedule 7.9 as “Assets held for Sale” if (1) at least 50% of the proceeds are received in cash and applied to the Obligations in accordance with Section 3.4 and any non-cash consideration received by any Loan Party shall constitute additional Collateral hereunder, in which the Agent prior shall have a duly perfected Lien; and (2) after giving effect to the Closing Date and which are set forth on Schedule 7.9, provided (i) in the case of sales or other dispositions of Designated Collateralsuch disposition, no Default or Event of Default then exists;
(A) any sale or other disposition by Fleetwood or any Borrower of Home One Credit Corp. or all or substantially all of the property of Home One Credit Corp. (including, without limitation, Home One Funding I and each other Finance Co.) (a “Finance Co. Disposition”) or (B) any sale or other disposition by Fleetwood or any Borrower of FRC of all or substantially all of the net proceeds received as property of FRC (a result “FRC Disposition”); provided that the following conditions are satisfied:
(i) in each case, any guaranty provided or Lien granted by Fleetwood (or any Person that shall remain a Subsidiary of Fleetwood after such sale are greater than net tangible book value or other disposition) in respect of the assets any obligations under any Debt of any Subsidiary so sold or otherwise so disposed of (or whose property shall have been otherwise disposed of) shall be fully and the Net Cash Proceeds are allocated and paid as required by the Intercreditor Agreement, and unconditionally released;
(ii) in the case of dispositions any FRC Disposition, (x) the FRC Borrowers shall make any payment required pursuant to Section 3.4(e) in connection with the corresponding FRC Borrower Release solely with the proceeds of Revolver Lender Collateral, the Net Cash Proceeds of such sale or FRC Disposition and the Finance Co. Disposition; (y) the FRC Borrowers shall prepay in full all Debt (other disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,
(e) dissolutions of Subsidiaries that are not Borrowers and dissolutions of R & B and M M & E than intercompany Debt incurred in accordance with Section 7.13(g) through (m), inclusive, and (p)) incurred by such FRC Borrowers, including without limitation, any Floor Plan Debt of any Subsidiary incurred in accordance with Section 7.13(n) solely with the provisions proceeds of the FRC Disposition and the Finance Co. Disposition; and (z) the FRC Borrowers shall repay in full (whether by prepayment of intercompany loans or by Distribution but, in any event, solely with the proceeds of the FRC Disposition and the Finance Co. Disposition) all amounts advanced to such FRC Borrowers from Fleetwood or any other Subsidiary of Fleetwood to such FRC Borrowers (in accordance with Section 7.2,7.10(c)(i), Section 7.10(c)(iii) and Section 7.13(g) through (m), inclusive, and (p) or otherwise) after the Closing Date.
(f) sales or other dispositions of assets not in the ordinary course of business provided (iiii) in the case of sales or other dispositions of Designated Collateralany Finance Co. Disposition, (Ax) no Default or Event of Default then existsFinance Co. shall prepay in full all Debt (other than intercompany Debt incurred in accordance with Section 7.13(g) through (m), (B) the net sales proceeds received from such sale or sales exceeds net tangible book value, (C) the proceeds received in the aggregate from all such sales do not exceed $10,000,000 in any Fiscal Year and do not exceed $25,000,000 during the term of this Agreementinclusive, and (Dp)) the Net Cash Proceeds received are distributed or applied for the benefit incurred by Finance Co., including without limitation, any Debt of the Lenders and the Revolver Agent, any Subsidiary of Fleetwood outstanding under any Warehouse Financing Lines of Credit incurred in accordance with Section 7.13(u) solely with the provisions proceeds of the Intercreditor AgreementFinance Co. Disposition; and (y) the Finance Co. shall repay in full (whether by prepayment of intercompany loans or by Distribution but, in any event, solely with the proceeds of the Finance Co. Disposition) all amounts advanced to such FRC Borrowers from Fleetwood or any other Subsidiary of Fleetwood to such FRC Borrowers (in accordance with Section 7.10(c)(iii), Section 7.10(c)(vii), Section 7.10(viii), Section 7.10(c)(x) and Section 7.13(g) through (m), inclusive, and (iip) in or otherwise) after the case of sales or other dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,Closing Date.
(g) Parent any Excluded Subsidiary may be wound up and the other Borrowers may enter into licensing agreements in the ordinary course dissolved or sell any of business provided they are consistent with reasonable business practices,its assets;
(h) sale and sale/leaseback transactions with respect to Real Estate and Equipment permitted pursuant to by Section 7.19, and;
(i) leasesany sale or other disposition by Fleetwood or any Borrower of property that does not constitute Collateral (other than a Finance Co. Disposition or a FRC Disposition, each of which, for the avoidance of doubt, may be made in accordance with Section 7.9(f) above), provided that the ordinary course of Borrowers' business, Flexibility Conditions are satisfied as of the Real Estate, provided, no Default or Event date of Default then exists and both before and immediately after giving effect to such leasesale or other disposition.
(j) sale of Term Loan Collateral for at least fair market value, no material portion provided, however, that (x) the sales price for any Term Loan Collateral must be greater than eighty percent (80%) of the Inventory Appraised Orderly Liquidation Value for such Term Loan Collateral; and (y) all proceeds shall be in cash and shall be applied to repay the Loans as required by Section 3.4(c); and
(k) any loss, damage, or destruction to Fleetwood’s assets, in so far as the insurance and/or condemnation proceeds received by Fleetwood in connection thereof are applied in accordance with Section 7.6. All Equipment is located on purchased under this paragraph shall be free and clear of all Liens except Liens under clauses (a) and (b) of the leased premises unless Agent has received estoppel letters governing access to the leased premises and containing such other assurances as Agent shall deem reasonably necessarydefinition of Permitted Liens.
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Mergers, Consolidations or Sales. Neither the Parent nor The Borrowers will not, and will not permit any of the other Borrowers shall their Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger, reorganization, merger or consolidation, or transferconvey, sell, assign, lease, lease or otherwise dispose of all or any material part of its property, or wind up, liquidate or dissolve, (or agree to do any of the foregoingforegoing at any future time) all or any part of its property or assets (including, without limitation, any sale, lease, or other disposition, or issuance, of equity interests or securities of a Subsidiary or another Person), or enter into any sale-leaseback transactions (except as permitted under Section 7.19), except forthat:
(a) Omnova and its Subsidiaries may make sales of Cash Equivalents and Inventory in the ordinary course of its business,;
(b) sales or other dispositions of Equipment in the ordinary course of business that are obsolete or no longer useable by such Borrower in Omnova and its business with an orderly liquidation value not to exceed $10,000,000 in any Fiscal Year,
(c) sales or other dispositions of Borrowers' patents and trademarks in an aggregate sale price not to exceed $20,000,000 during the period beginning on the Closing Date and ending on the Maturity Date,
(d) Subsidiaries may make sales or other dispositions of assets by Borrowers that have been approved by (other than the Agent prior to the Closing Date and which are set forth on Schedule 7.9equity interests of a Borrower); provided that, provided (i) in the case of sales or other dispositions of Designated Collateral, no Default or Event of Default then exists, the net proceeds received as a result of such sale are greater than net tangible book value of the assets so sold and the Net Cash Proceeds are allocated and paid as required by the Intercreditor Agreement, and (ii) in the case of dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or other disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,
(e) dissolutions of Subsidiaries that are not Borrowers and dissolutions of R & B and M M & E in accordance with the provisions of Section 7.2,
(f) sales or other dispositions of assets not in the ordinary course of business provided (i) in the case of sales or other dispositions of Designated Collateral, (A) no Default or Event of Default shall have occurred and then exists, (B) the net sales proceeds received from be continuing immediately before or after giving effect to such sale or sales exceeds net tangible book valuedisposition, (Cii) each such sale or disposition of Accounts and/or Inventory of Borrowers and/or Guarantors results in consideration of 100% cash in an amount equal to at least the Fair Market Value of such assets (but, to the extent such sale or disposition involves Eligible Accounts or Eligible Inventory, in no event shall the net proceeds received be less than the amount of Availability generated by such Eligible Accounts and/or Eligible Inventory under the definition of Borrowing Base) and all of such proceeds shall be applied against the outstanding balance of Revolving Loans, (iii) each such sale or disposition of other assets results in consideration at least 75% of which shall at the time received be in the form of cash (provided that in lieu of cash Omnova may receive, as consideration for the sale of any assets, assets which Omnova would have been permitted to reinvest in under the terms of Section 4.02(c) of the Term Loan Agreement as in effect on the date hereof if Omnova had received cash consideration), (iv) the aggregate sale proceeds received in the aggregate from all assets subject to such sales do shall not exceed the greater of (x) $10,000,000 15,000,000 and (y) 10% of consolidated total assets of Omnova and its Subsidiaries, in each case in any Fiscal Year and do not exceed of Omnova plus, in the case of a sale or disposition of foreign assets or a Foreign Subsidiary, $25,000,000 during 100,000,000 in the term of this Agreement, aggregate after the Closing Date and (Dv) net proceeds from the Net Cash Proceeds received sale or disposition of assets (other than Accounts and Inventory of Borrowers and Guarantors) in excess of $15,000,000 are distributed either applied as provided in Section 4.02(c) of the Term Loan Agreement as in effect on the date hereof or reinvested in assets to the extent permitted by Section 4.02(c) of the Term Loan Agreement as in effect on the date hereof;
(c) Capital Expenditures by Omnova and its Subsidiaries shall be permitted;
(d) Omnova and its Subsidiaries may sell or otherwise dispose of damaged, obsolete or worn-out assets (excluding Eligible Accounts and Eligible Inventory) that are no longer necessary for the proper conduct of their respective business for Fair Market Value so long as the proceeds from the sale of any Accounts and Inventory of Borrowers are applied to repay the Revolving Loans;
(e) transactions permitted by Section 7.10 shall be permitted;
(f) Omnova and its Subsidiaries may grant leases or subleases of real property and equipment to other Persons in the ordinary course of business and not materially interfering with the conduct of the business of Omnova and its Subsidiaries taken as a whole;
(g) any Foreign Subsidiary of Omnova may be sold or transferred to, merged with and into, or be dissolved or liquidated into, or any of its assets or equity interests otherwise sold or transferred to (x) Omnova or (y) any wholly-owned Subsidiary of Omnova, so long as any security interests granted to the Agent for the benefit of the Lenders pursuant to the Loan Documents in the equity interests of such Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to at least the Revolver Agentsame extent as in effect immediately prior to such merger, consolidation, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken;
(h) any Domestic Subsidiary of Omnova may be merged with and into, or be dissolved or liquidated into, or any of its assets transferred to (x) Omnova or (y) any wholly-owned Domestic Subsidiary of Omnova, so long as (i), in accordance with the provisions case of the Intercreditor Agreementclause (y), such wholly-owned Domestic Subsidiary of Omnova is a Guarantor and (ii) any security interests granted to the Agent for the benefit of the Lenders pursuant to the Loan Documents in the case of sales or other dispositions of Revolver Lender Collateral, the Net Cash Proceeds assets of such sale Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,
(gliquidation) Parent and the other Borrowers may enter into licensing agreements in the ordinary course of business provided they are consistent with reasonable business practices,
(h) sale and leaseback transactions permitted pursuant all actions required to Section 7.19, andmaintain said perfected status have been taken;
(i) leasesthe Borrowers and the Guarantors may sell or otherwise transfer assets (other than any real property and other than Accounts and Inventory from a Borrower to a Guarantor) between or among one another, and any Foreign Subsidiary may sell or otherwise transfer assets to another Foreign Subsidiary;
(j) each of Omnova and its Subsidiaries may, in the ordinary course of Borrowers' business, license on a non-exclusive basis patents, trademarks, copyrights and know-how to third Persons, so long as each such license does not prohibit the granting of a Lien by Omnova or such Subsidiary in the intellectual property covered by such license;
(k) each of Omnova and its Subsidiaries may liquidate any Inactive Subsidiary;
(l) the Borrowers may make sales of Inventory of the Real EstateBorrowers to their Foreign Subsidiaries in the ordinary course of business; provided that, provided, (i) no Default or Event of Default shall have occurred and then exists and be continuing immediately before or after giving effect to such leasesale or transfer, (ii) any sale shall be for at least Fair Market Value (but, in the event any Eligible Inventory is sold, in no material portion event shall the net proceeds received be less than the amount of Availability generated by such Eligible Inventory under the definition of Borrowing Base) and result in 100% cash consideration, the net proceeds of which are applied to repay the Revolving Loans; provided, that Borrowers may hold open accounts receivable for such sales (and, to the extent any such receivable is evidenced by a note in favor of the applicable Borrower, such note shall be pledged to the Agent pursuant to the Pledge Agreement) in amounts equal to at least the Fair Market Value of such Inventory sold (but, in the event any Eligible Inventory is sold, in no event less than the amount of Availability generated by such Eligible Inventory under the definition of Borrowing Base) and any repayments on such account receivable or Equipment is located note shall be applied to repay the Revolving Loans; provided, further, that the aggregate accounts receivables outstanding at any one time created after the Closing Date and generated from such Inventory sales shall not exceed $10,000,000 (and for the avoidance of doubt shall exclude the accounts receivable listed on Schedule 7.9 hereto);
(m) the Borrowers may sell or discount Accounts (other than Eligible Accounts) in the ordinary course of business, but only in connection with the collection or compromise thereof; provided that, (i) no Default or Event of Default shall have occurred and then be continuing immediately before or after giving effect to such sale or discount and (ii) any such sale or discount shall be for at least Fair Market Value and any net cash proceeds therefrom shall be applied to repay the Revolving Loans;
(n) any Foreign Subsidiary may sell or discount accounts in the ordinary course of business, but only in connection with the collection or compromise thereof; provided that, (i) no Default or Event of Default shall have occurred and then be continuing immediately before or after giving effect to such sale or discount and (ii) any such sale or discount shall be for at least Fair Market Value. For purposes of clause (iii) of the proviso to clause (b) above, the following shall be deemed to be cash in respect of any sale or disposition:
(1) the amount (without duplication) of any liability (other than any Debt of Omnova or a Guarantor whether outstanding on the leased premises unless Agent has received estoppel letters governing access Closing Date or thereafter incurred which is subordinated by its terms in right of payment to the leased premises Obligations) that would be recorded on a balance sheet prepared in accordance with GAAP of Omnova or such Subsidiary that is expressly (x) assumed by a Person other than Omnova or a Subsidiary, or (y) expunged by the holder of such liability, and containing with respect to which, in each case, Omnova or such Subsidiary, as the case may be, is unconditionally released from further liability with respect thereto;
(2) the amount of any obligations or securities received from such transferee that are within 180 days repaid, converted into or sold or otherwise disposed of for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents actually so received);
(3) any contingent earn-out obligation received by Omnova or any Subsidiary in such asset sale having an aggregate potential payout, taken together with all other assurances as Agent shall deem reasonably necessarycontingent earn-out obligations received pursuant to this clause since the Closing Date that are at the time outstanding and held by Omnova or any Subsidiary, not to exceed $20,000,000 at that time then outstanding (after giving effect to any payment or reduction); and
(4) any Designated Noncash Consideration received by Omnova or any Subsidiary in such asset sale having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause since the Closing Date that is at the time outstanding and held by Omnova or any Subsidiary, not to exceed the greater of (x) $25,000,000 or (y) 5.5% of Consolidated Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value.
Appears in 1 contract
Mergers, Consolidations or Sales. Neither the Parent Fleetwood nor any of the other Borrowers its Subsidiaries shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise dispose of all or any material part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except for:except
(a) sales of Inventory in the ordinary course of its business,;
(b) sales sales, trade-ins, exchanges or other dispositions of Equipment in the ordinary course of business that are obsolete or no longer used or useable by such Borrower the applicable Person in its business with an orderly liquidation value not to exceed $10,000,000 5,000,000 in any Fiscal Year,;
(c) sales or on no less than 10 days’ prior notice to the Agent (unless a shorter period is acceptable to the Agent in its sole discretion), any FMC Borrower may merge with and into any other dispositions FMC Borrower and any FRC Borrower may merge with and into any other FRC Borrower, provided, however, that all Liens of Borrowers' patents the Agent shall remain unimpaired, and trademarks in an aggregate sale price not the surviving Borrower shall execute and deliver to exceed $20,000,000 during the period beginning on Agent such documents and agreements as the Closing Date Agent may reasonably request to evidence the continued liability for the Obligations of the disappearing Borrower and ending on the Maturity Date,Liens securing such Obligations;
(d) sales sales, trade-ins, exchanges or other dispositions of assets by Borrowers that have been approved Fleetwood or any of its Subsidiaries with an orderly liquidation value not to exceed $5,000,000 in the aggregate;
(e) sale for fair market value of the assets described on Schedule 7.9 as “Assets held for Sale” if (1) at least 50% of the proceeds are received in cash and applied to the Obligations in accordance with Section 3.4 and any non-cash consideration received by any Loan Party shall constitute additional Collateral hereunder, in which the Agent prior shall have a duly perfected Lien; and (2) after giving effect to the Closing Date and which are set forth on Schedule 7.9, provided (i) in the case of sales or other dispositions of Designated Collateralsuch disposition, no Default or Event of Default then exists, the net proceeds received as a result of such sale are greater than net tangible book value of the assets so sold and the Net Cash Proceeds are allocated and paid as required by the Intercreditor Agreement, and (ii) in the case of dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or other disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,
(e) dissolutions of Subsidiaries that are not Borrowers and dissolutions of R & B and M M & E in accordance with the provisions of Section 7.2,;
(f) sales or other dispositions of assets not in the ordinary course of business provided (i) in the case of sales or other dispositions of Designated Collateral, (A) no Default or Event of Default then exists, (B) the net sales proceeds received from such sale or sales exceeds net tangible book value, (C) the proceeds received in the aggregate from all such sales do not exceed $10,000,000 in any Fiscal Year and do not exceed $25,000,000 during the term of this Agreement, and (D) the Net Cash Proceeds received are distributed or applied for the benefit of the Lenders and the Revolver Agent, in accordance with the provisions of the Intercreditor Agreement, and (ii) in the case of sales or other dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such sale or disposition are utilized or applied in a manner not prohibited by this Agreement, the Revolving Credit Documents, or the Intercreditor Agreement,[RESERVED]
(g) Parent any Excluded Subsidiary may be wound up and the other Borrowers may enter into licensing agreements in the ordinary course dissolved or sell any of business provided they are consistent with reasonable business practices,its assets;
(h) sale and sale/leaseback transactions with respect to Real Estate and Equipment permitted pursuant to by Section 7.19, ; and
(i) leasesany sale or other disposition by Fleetwood or any Borrower of property that does not constitute Collateral, in provided that the ordinary course of Borrowers' business, Flexibility Conditions are satisfied as of the Real Estate, provided, no Default or Event date of Default then exists and both before and immediately after giving effect to such lease, no material portion sale or other disposition. All Equipment purchased under this paragraph shall be free and clear of all Liens except Liens under clauses (a) and (b) of the Inventory or Equipment is located on the leased premises unless Agent has received estoppel letters governing access to the leased premises and containing such other assurances as Agent shall deem reasonably necessarydefinition of Permitted Liens.
Appears in 1 contract
