Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its Property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that: (a) Capital Expenditures by Borrowers and the Subsidiaries shall be permitted to the extent permitted by Section 6.08(d); (i) purchases or other acquisitions of inventory, materials, equipment and intangible assets and sales of inventory in the ordinary course of business shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent), seller financing, deferred payments or equity issued), (viii) sales of used, worn out, obsolete or surplus Property by any Company in the ordinary course of business and the abandonment or other sale or disposition of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole shall be permitted, (ix) subject to Section 2.09(b), Asset Sales listed on Schedule 6.05(b) shall be permitted; and (x) subject to Section 2.09(b), Asset Sales not otherwise included in clauses (b)(i) through (ix) of this shall be permitted; provided that the aggregate consideration received in respect of all asset sales pursuant to this clause (b)(x) shall not exceed $5.0 million in any four consecutive fiscal quarters of Borrowers; (c) Investments may be made and sold to the extent permitted by Section 6.04; (d) Borrowers and the Subsidiaries may sell Cash Equivalents and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business; (e) Borrowers and the Subsidiaries may lease (as lessee or lessor) real or personal Property in the ordinary course of business and in accordance with the applicable Security Documents; (f) Borrowers and the Subsidiaries may consummate Permitted Acquisitions; (g) any Loan Party (other than Borrowers) may transfer or lease Property to, or acquire or lease Property from, any Loan Party; provided that the Lien on and security interest in such Property granted or to be granted in favor of the Administrative Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 or 5.11, as applicable; (h) any Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect; (i) discounts or forgiveness of account receivables in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided the account debtor is not an Affiliate; (j) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted; (k) BearingPoint may forgive the indebtedness outstanding under the Barents Group Loans; and (l) any Loan Party may merge with or into any other Loan Party so long as a Borrower is the surviving entity in any merger involving a Borrower. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent shall take all actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Bearingpoint Inc), Credit Agreement (Bearingpoint Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do enter into any of the foregoing at any future time) all or any part of its Property or assets, or purchase or otherwise acquire Asset Sale (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that:
(a) The Companies may make Capital Expenditures by Borrowers and the Subsidiaries shall be permitted to the extent permitted by Section 6.08(d)Expenditures;
(b) (i) purchases or other acquisitions of inventory, materials, equipment and intangible assets and sales of inventory in the ordinary course of business shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent), seller financing, deferred payments or equity issued), (viii) sales of used, worn out, obsolete or surplus Property by any Company in the ordinary course of business and the abandonment or other sale or disposition of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole shall be permitted, (ix) subject to Section 2.09(b2.10(c), Asset Sales listed on Schedule 6.05(b) shall be permitted; and as long as no Event of Default exists or would arise therefrom, (x) subject the sale, lease or other disposal of any assets for fair value in an amount in any fiscal year not to Section 2.09(b), Asset Sales not otherwise included in clauses (b)(i) through (ix) of this exceed $5,000,000 shall be permitted; provided that the aggregate consideration received in respect of all asset sales pursuant to this clause (b)(x) purchase price for any Accounts or Inventory shall not exceed $5.0 million in any four consecutive fiscal quarters of Borrowers;be solely for cash consideration.
(c) Investments and acquisitions in connection with any such transaction that may be made and sold to the extent permitted by Section 6.046.04 (including Permitted Acquisitions);
(d) Borrowers and As long as no Specified Default then exists or would arise therefrom, the Subsidiaries Companies may sell Cash Equivalents for fair value and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business;
(e) Borrowers and the Subsidiaries Companies may lease (as lessee or lessor) ), license (as licensee or licensor), sublicense, real or personal Property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(f) Borrowers and the Subsidiaries may consummate Permitted AcquisitionsTransactions shall be permitted;
(g) the Companies may consummate Permitted Acquisitions (including the issuance of stock as part of the Acquisition Consideration to the extent otherwise permitted hereunder);
(h) (i) any Loan Party may transfer Property, or lease to, or acquire or lease Property from, any Loan Party, (ii) any Company may transfer or lease Property to or acquire or lease Property from any Loan Party and (iii) any Foreign Subsidiary may transfer or lease Property to or acquire or lease Property from any other Foreign Subsidiary and (iv) any Company (other than Borrowersa Loan Party) may transfer or lease Property to, or acquire or lease Property from, any other Company (other than a Loan Party); provided that that, in each case, the Lien on and security interest in such Property granted or to be granted in favor of the Administrative Agent under the Security Documents shall be maintained or created in accordance with with, and to the extent required by, the provisions of Section 5.10 5.11 or 5.11Section 5.12, as applicable;
(h) any Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect;
(i) discounts or forgiveness of account receivables in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided the account debtor is not an Affiliate;
(j) sales of non-core assets (i) owned by the targets of Permitted Acquisitions and acquired as a result of such Permitted Acquisitions, or (ii) acquired in connection with Permitted Investments;
(k) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted;
(kl) BearingPoint may forgive issuance of Equity Interests of the indebtedness outstanding under Lead Borrower or the Barents Group Loans; andFuture Holding Company (including warrants or options or similar interests) to officers and employees pursuant to a stock ownership or purchase plan or compensation plan of the Lead Borrower shall be permitted;
(lm) any issuance of Equity Interests (including warrants or options or similar interests) to a Company, shall be permitted provided such Equity Interests are pledged (and such certificates are delivered) to Administrative Agent in accordance with and to the extent required by the Security Agreement;
(n) terminations of Leases in the ordinary course of business shall be permitted;
(i) Loan Party Parties may merge with or into any other Loan Party Party, so long as a Borrower is the surviving entity in any merger involving a Borrower, (ii) any Subsidiary may liquidate, dissolve, consolidate, or merge into a Loan Party in a transaction in which a Loan Party is the surviving corporation; provided that any such merger involving a Person that is not a Wholly-Owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04 and (iii) any Subsidiary that is not a Loan Party may liquidate, dissolve, consolidate, or merge into any other Subsidiary that is not a Loan Party;
(p) creation and capitalization of Foreign Subsidiaries and the transfers of assets to such Foreign Subsidiaries to the extent permitted by and subject to the restrictions set forth in Section 6.04;
(q) any disposition of Real Estate to a Governmental Authority as a result of a condemnation of such Real Estate; and
(r) the making of Permitted Investments and payments permitted hereunder. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, the Administrative Agent’s Lien, on behalf of the Lenders shall automatically terminate and such Collateral (unless sold to a CompanyLoan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent Agents shall take all actions deemed appropriate in order to effect evidence the foregoingrelease of such Lien.
Appears in 1 contract
Samples: Credit Agreement (Broder Bros., Co.)
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its Property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that:
(a) Capital Expenditures by Borrowers Borrower and the its Subsidiaries shall be permitted to the extent permitted by Section 6.08(d);
(i) purchases or other acquisitions of inventory, materials, equipment equipment, Real Property and intangible assets and sales of inventory in the ordinary course of business (in each case, not constituting Capital Expenditures) shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted subject to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent2.10(c), seller financing, deferred payments or equity issued), (viii) sales Asset Sales of used, worn out, obsolete or surplus Property by any Company in the ordinary course of business and business, the abandonment or other sale or disposition Asset Sale of Intellectual Property that is, in the reasonable judgment of BorrowersBorrower, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole whole, and dispositions of assets expressly excluded from the definition of “Asset Sales” shall be permitted, and (ixiii) subject to Section 2.09(b2.10(c), Asset Sales listed on Schedule 6.05(b) the sale, lease or other disposal of any assets shall be permitted; and (x) subject to Section 2.09(b)provided, Asset Sales not otherwise included in clauses (b)(i) through (ix) of this shall be permitted; provided that the aggregate consideration received in respect of all asset sales Asset Sales pursuant to this clause (b)(xb)(iii) shall not exceed $5.0 million in any four consecutive fiscal quarters of BorrowersBorrower;
(c) Permitted Acquisitions and Investments in connection with any transaction covered by this Section 6.05 may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers Borrower and the its Subsidiaries may sell Cash Equivalents and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business;
(e) Borrowers Borrower and the its Subsidiaries may lease (as lessee or lessor) real or personal Property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(f) Borrowers and the Subsidiaries may consummate Permitted AcquisitionsTransactions shall be permitted as contemplated by the Transaction Documents;
(g) any Loan Party (other than Borrowers) may transfer (as a result of a dissolution, liquidation or otherwise) or lease Property to, to or acquire or lease Property from, from any Loan Party or any Loan Party may be merged into Borrower or a Wholly Owned Subsidiary (including as a result of the dissolution or liquidation of such Loan Party), as long as Borrower or a Wholly Owned Subsidiary is the surviving corporation of such merger and, in the case of such Wholly Owned Subsidiary, it remains a Wholly Owned Subsidiary of Holdings); provided provided, that the Lien on and security interest in such Property granted or to be granted in favor of the Administrative Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 5.11 or 5.115.12, as applicable;
(h) any Subsidiary (other than Borrower) that is not a Subsidiary Guarantor may dissolve, liquidate or wind up its affairs at any time; provided provided, that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect; and
(i) Asset Sales by any Company to any other Company shall be permitted; provided, that such Asset Sale involving a Subsidiary that it is not a Loan Party shall be otherwise in compliance with Section 6.07;
(ij) discounts or forgiveness of account receivables in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided provided, the account debtor is not an Affiliate;
(jk) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted;
(kl) BearingPoint may forgive the indebtedness sale of Inventory in the ordinary course of business;
(m) the sale of all of the outstanding under capital stock or all or substantially all of the Barents Group Loansassets of any or each of Xxxxxxx & Xxxxxxx, Inc., a Delaware corporation, Xxxxxxx and Xxxxxxx Operations, Inc., a Delaware corporation, and Xxxxxxx and Xxxxxxx Company, a Delaware corporation, in each case, in one or a series of related substantially concurrent transactions, so long as (i) no Default then exists or would result therefrom, (ii) Borrower receives cash consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of, and (iii) the net cash proceeds of such Asset Sale are applied in a manner not otherwise prohibited by this Agreement;
(n) subject to Section 2.10(f), any replacement of Property subject to a Casualty Event; and
(lo) dispositions of Property subject to any Loan Party may merge with or into any other Loan Party sale and leaseback transactions permitted under Section 6.03, so long as both immediately prior to any such transaction and, on a Borrower is the surviving entity in pro forma basis, immediately after any merger involving a Borrower. such transaction, Total Liquidity shall be no less than $15.0 million To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent Agents shall take all actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its Property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that:
(a) Capital Expenditures by Borrowers and the Subsidiaries shall be permitted to the extent permitted by Section 6.08(d6.08(e);
(i) purchases or other acquisitions of inventory, materials, equipment and intangible assets and sales of inventory in the ordinary course of business shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted subject to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent2.10(b), seller financing, deferred payments or equity issued), (viii) sales of used, worn out, obsolete or surplus Property by any Company in the ordinary course of business and the abandonment or other sale or disposition Asset Sale of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole currently being conducted shall be permitted, permitted and (ixiii) subject to Section 2.09(b2.10(b), Asset Sales listed on Schedule 6.05(b) shall be permitted; and (x) subject to Section 2.09(b)the sale, Asset Sales not otherwise included lease or other disposal of any assets in clauses (b)(i) through (ix) of this an arm’s length transaction shall be permitted; provided that the aggregate consideration received in respect of all asset sales Asset Sales pursuant to this clause (b)(xb)(iii) shall not exceed $5.0 1.0 million in any four consecutive fiscal quarters of Borrowers;
(c) Investments in connection with any such transaction may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers and the Subsidiaries may sell Cash Equivalents and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business;
(e) Borrowers and the Subsidiaries may lease (as lessee or lessor) real or personal Property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(f) the Transactions shall be permitted as contemplated by the Transaction Documents;
(g) Borrowers and the Subsidiaries may consummate Permitted Acquisitions;
(gh) (i) any Loan Party (other than Borrowers) may transfer or lease Property to, or acquire or lease Property from, any Loan Party; provided, that any such lease of any of the Mortgaged Real Property shall be made expressly subordinated to the applicable Mortgage, and (ii) any Loan Party (other than Holdings) may be merged into any other Loan Party (other than Holdings); provided, that, in any merger involving a Borrower, a Borrower shall be the surviving corporation; provided that the Lien Liens on and security interest in such Property granted or to be the Collateral granted in favor of the Administrative Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 or 5.11, as applicablemaintained;
(hi) any Subsidiary of a Borrower may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect;; and
(ij) discounts or forgiveness of account receivables accounts receivable in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided the account debtor is not an Affiliate;; and
(jk) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted;
(k) BearingPoint may forgive the indebtedness outstanding under the Barents Group Loans; and
(l) any Loan Party may merge with or into any other Loan Party so long as a Borrower is the surviving entity in any merger involving a Borrower. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall take all actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its Property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that:
(a) Capital Expenditures by Borrowers and the Subsidiaries shall be permitted to the extent permitted by Section 6.08(d6.08(e);
(i) purchases or other acquisitions of inventory, materials, equipment and intangible assets and sales of inventory in the ordinary course of business shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted subject to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent2.10(b), seller financing, deferred payments or equity issued), (viii) sales of used, worn out, obsolete or surplus Property by any Company in the ordinary course of business and the abandonment or other sale or disposition Asset Sale of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole currently being conducted shall be permitted, permitted and (ixiii) subject to Section 2.09(b2.10(b), Asset Sales listed on Schedule 6.05(b) shall be permitted; and (x) subject to Section 2.09(b)the sale, Asset Sales not otherwise included in clauses (b)(i) through (ix) lease or other disposal of this any assets shall be permitted; provided that the aggregate consideration received in respect of all asset sales Asset Sales pursuant to this clause (b)(xb)(iii) shall not exceed $5.0 1.0 million in any four consecutive fiscal quarters of Borrowers;
(c) Investments in connection with any such transaction may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers and the Subsidiaries may sell Cash Equivalents and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business;
(e) Borrowers and the Subsidiaries may lease (as lessee or lessor) real or personal Property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(f) the Transactions shall be permitted as contemplated by the Transaction Documents;
(g) Borrowers and the Subsidiaries may consummate Permitted Acquisitions;
(gh) (i) any Loan Party (other than Borrowers) may transfer or lease Property to, or acquire or lease Property from, any Loan Party; provided, that any such lease of any of the Mortgaged Real Property shall be made expressly subordinated to the applicable Mortgage, and (ii) any Loan Party (other than Holdings) may be merged into any other Loan Party (other than Holdings); provided, that, in any merger involving a Borrower, a Borrower shall be the surviving corporation; provided that the Lien Liens on and security interest in such Property granted or to be the Collateral granted in favor of the Administrative Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 or 5.11, as applicablemaintained;
(hi) any Subsidiary of a Borrower may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect;; and
(ij) discounts or forgiveness of account receivables accounts receivable in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided the account debtor is not an Affiliate;; and
(jk) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted;
(k) BearingPoint may forgive the indebtedness outstanding under the Barents Group Loans; and
(l) any Loan Party may merge with or into any other Loan Party so long as a Borrower is the surviving entity in any merger involving a Borrower. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall take all actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do enter into any of the foregoing at any future time) all or any part of its Property or assets, or purchase or otherwise acquire Asset Sale (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that:
(a) The Loan Parties may make Capital Expenditures by Borrowers and the Subsidiaries shall be permitted to the extent permitted by Section 6.08(d)Expenditures;
(b) (i) purchases or other acquisitions of inventory, materials, equipment and intangible assets and sales of inventory in the ordinary course of business shall be permitted, and (ii) sales subject to Section 2.10(c), as long as no Event of equipment Default exists or software procured on behalf would arise therefrom, the sale, lease or other disposal of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted to the extent that (1) such property is exchanged any assets for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction fair value shall be permitted; provided (1) such assets were identified in writing to that the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all for and Accounts and Inventory shall be solely for cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers consideration and the Administrative Agent), seller financing, deferred payments or equity issued), (viii) sales of used, worn out, obsolete or surplus Property by purchase price for any Company in the ordinary course of business and the abandonment or other sale or disposition of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole assets shall be permittedfor at least 75% cash consideration, (ix) subject to Section 2.09(b), Asset Sales listed on Schedule 6.05(b) shall be permitted; and (x) subject to Section 2.09(b), Asset Sales not otherwise included in clauses (b)(i) through (ix) of this shall be permitted; provided further that the aggregate consideration received in respect of all asset sales Asset Sales pursuant to this clause (b)(xb)(ii) shall not exceed $5.0 million in any four consecutive fiscal quarters of the Borrowers;
(c) Investments and acquisitions in connection with any such transaction that may be made and sold to the extent permitted by Section 6.046.04 (including Permitted Acquisitions);
(d) Borrowers and As long as no Specified Default then exists or would arise therefrom, the Subsidiaries Loan Parties may sell Cash Equivalents for fair value and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business;
(e) Borrowers and the Subsidiaries Loan Parties may lease (as lessee or lessor) license (as licensee or licensor), sublicense, real or personal Property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(f) Borrowers and the Subsidiaries may consummate Permitted AcquisitionsTransactions shall be permitted;
(g) the Loan Parties may consummate Permitted Acquisitions (including the issuance of stock as part of the Acquisition Consideration to the extent otherwise permitted hereunder);
(h) any Loan Party (other than Borrowers) may transfer Property, or lease Property to, or acquire or lease Property from, any Loan Party; provided that the Lien on and security interest in such Property granted or to be granted in favor of the Administrative Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 5.11 or 5.11Section 5.12, as applicable;
(h) any Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect;
(i) discounts or forgiveness of account receivables in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided the account debtor is not an AffiliateAffiliate (except with respect to Sponsor’s portfolio companies);
(j) sales of non-core assets (i) owned by the targets of Permitted Acquisitions and acquired as a result of such Permitted Acquisitions, or (ii) acquired in connection with Permitted Investments;
(k) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted;
(kl) BearingPoint may forgive issuance of Equity Interests of the indebtedness outstanding under Lead Borrower or the Barents Group Loans; andFuture Holding Loan Party (including warrants or options or similar interests) to officers and employees pursuant to a stock ownership or purchase plan or compensation plan of the Lead Borrower shall be permitted;
(lm) any issuance of Equity Interests (including warrants or options or similar interests) to a Borrower or another Loan Party Party, shall be permitted provided such Equity Interests are pledged (and such certificates are delivered) to Collateral Agent in accordance with the Security Agreement;
(n) terminations of Leases in the ordinary course of business shall be permitted;
(i) Loan Parties may merge with or into any other Loan Party Party, so long as a Borrower is the surviving entity in any merger involving a BorrowerBorrower (ii) any Subsidiary may liquidate, dissolve, consolidate, or merge into a Loan Party in a transaction in which a Loan Party is the surviving corporation; provided that any such merger involving a Person that is not a Wholly-Owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04;
(p) creation and capitalization of Foreign Subsidiaries and the transfers of assets to such Foreign Subsidiaries to the extent permitted by and subject to the restrictions set forth in Sections 6.04(q);
(q) any disposition of Real Estate to a Governmental Authority as a result of a condemnation of such Real Estate; and
(r) the making of Permitted Investments and payments permitted hereunder. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, the Collateral Agent’s Lien, on behalf of the Lenders shall automatically terminate and such Collateral (unless sold to a CompanyLoan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent Agents shall take all actions deemed appropriate in order to effect evidence the foregoingrelease of such Lien.
Appears in 1 contract
Samples: Credit Agreement (Broder Bros Co)
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its Property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that:
(a) Capital Expenditures by Borrowers Borrower and the its Subsidiaries shall be permitted to the extent permitted by Section 6.08(d);
(b) (i) purchases or other acquisitions of inventory, materials, equipment equipment, Real Property and intangible assets and sales of inventory in the ordinary course of business (in each case, not constituting Capital Expenditures) shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted subject to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent2.10(c), seller financing, deferred payments or equity issued), (viii) sales Asset Sales of used, worn out, obsolete or surplus Property by any Company in the ordinary course of business and business, the abandonment or other sale or disposition Asset Sale of Intellectual Property that is, in the reasonable judgment of BorrowersBorrower, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole whole, and dispositions of assets expressly excluded from the definition of “Asset Sales” shall be permitted, and (ixiii) subject to Section 2.09(b2.10(c), Asset Sales listed on Schedule 6.05(b) the sale, lease or other disposal of any assets shall be permitted; and (x) subject to Section 2.09(b)provided, Asset Sales not otherwise included in clauses (b)(i) through (ix) of this shall be permitted; provided that the aggregate consideration received in respect of all asset sales Asset Sales pursuant to this clause (b)(xb)(iii) shall not exceed $5.0 million in any four consecutive fiscal quarters of BorrowersBorrower;
(c) Permitted Acquisitions and Investments in connection with any transaction covered by this Section 6.05 may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers Borrower and the its Subsidiaries may sell Cash Equivalents and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business;
(e) Borrowers Borrower and the its Subsidiaries may lease (as lessee or lessor) real or personal Property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(f) Borrowers and the Subsidiaries may consummate Permitted AcquisitionsTransactions shall be permitted as contemplated by the Transaction Documents;
(g) any Loan Party (other than Borrowers) may transfer (as a result of a dissolution, liquidation or otherwise) or lease Property to, to or acquire or lease Property from, from any Loan Party or any Loan Party may be merged into Borrower or a Wholly Owned Subsidiary (including as a result of the dissolution or liquidation of such Loan Party), as long as Borrower or a Wholly Owned Subsidiary is the surviving corporation of such merger and, in the case of such Wholly Owned Subsidiary, it remains a Wholly Owned Subsidiary of Holdings; provided provided, that the Lien on and security interest in such Property granted or to be granted in favor of the Administrative Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 5.11 or 5.115.12, as applicable;
(h) any Subsidiary (other than Borrower) that is not a Subsidiary Guarantor may dissolve, liquidate or wind up its affairs at any time; provided provided, that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect; and
(i) Asset Sales by any Company to any other Company shall be permitted; provided, that such Asset Sale involving a Subsidiary that it is not a Loan Party shall be otherwise in compliance with Section 6.07;
(ij) discounts or forgiveness of account receivables in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided provided, the account debtor is not an Affiliate;
(jk) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted;
(kl) BearingPoint may forgive the indebtedness sale of Inventory in the ordinary course of business;
(m) the sale of all of the outstanding under capital stock or all or substantially all of the Barents Group Loansassets of any or each of Xxxxxxx & Xxxxxxx, Inc., a Delaware corporation, Xxxxxxx and Xxxxxxx Operations, Inc., a Delaware corporation, and Xxxxxxx and Xxxxxxx Company, a Delaware corporation, in each case, in one or a series of related substantially concurrent transactions, so long as (i) no Default then exists or would result therefrom, (ii) Borrower receives cash consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of, and (iii) the net cash proceeds of such Asset Sale are applied in a manner not otherwise prohibited by this Agreement;
(n) subject to Section 2.10(f), any replacement of Property subject to a Casualty Event; and
(lo) dispositions of Property subject to any Loan Party may merge with or into any other Loan Party sale and leaseback transactions permitted under Section 6.03, so long as both immediately prior to any such transaction and, on a Borrower is the surviving entity in pro forma basis, immediately after any merger involving a Borrower. such transaction, Total Liquidity shall be no less than $15.0 million To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent Agents shall take all actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate Merge into or dissolve its affairs or enter into consolidate with any transaction of merger or consolidationother Person, or conveypermit any other Person to merge into or consolidate with it, or sell, lease transfer, assign, lease, sublease or otherwise dispose of (in one transaction or agree to do any in a series of the foregoing at any future timetransactions) (i) all or any substantial part of its Property the assets (whether now owned or assetshereafter acquired) of the Company, either Guarantor or TAFSI, or purchase (ii) the capital stock of either Guarantor or TAFSI, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part of the Property or assets of any Person (or agree to do any of other Person; provided, however, that the foregoing at any future time), except thatshall not prohibit:
(a) Capital Expenditures by Borrowers and the Subsidiaries shall be permitted to the extent permitted by Section 6.08(d)sales of Permitted Investments for cash;
(ib) purchases sales, transfers and other dispositions of used or surplus equipment, vehicles and other acquisitions of inventory, materials, equipment and intangible assets and sales of inventory in the ordinary course of business shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted to the extent that (1) such property is exchanged for credit against the purchase price Company shall have complied with the provisions of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent5.3), seller financing, deferred payments or equity issued), (viii) sales of used, worn out, obsolete or surplus Property by any Company in the ordinary course of business and the abandonment or other sale or disposition of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole shall be permitted, (ix) subject to Section 2.09(b), Asset Sales listed on Schedule 6.05(b) shall be permitted; and (x) subject to Section 2.09(b), Asset Sales not otherwise included in clauses (b)(i) through (ix) of this shall be permitted; provided that the aggregate consideration received in respect of all asset sales pursuant to this clause (b)(x) shall not exceed $5.0 million in any four consecutive fiscal quarters of Borrowers;
(c) Investments may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers and the Subsidiaries may sell Cash Equivalents and use cash for purposes that are otherwise permitted by the terms sales of this Agreement inventory in the ordinary course of business;
(ed) Borrowers sales, transfers and other dispositions of Truckstops and the Subsidiaries may lease related assets for at least the then-current fair market value of such assets (as lessee or lessor) real or personal Property in the ordinary course of business other than any such sales, transfers and in accordance with the applicable Security Documents;
(f) Borrowers and the Subsidiaries may consummate Permitted Acquisitions;
other dispositions permitted under subsection (g) any Loan Party (other than Borrowers) may transfer or lease Property tobelow), or acquire or lease Property from, any Loan Party; provided that with the Lien on and security interest in such Property granted or to be granted in favor of the Administrative Agent under the Security Documents shall be maintained or created related Net Cash Proceeds being applied in accordance with the provisions of Section 5.10 5.3 and the definition of the term "PREPAYMENT EVENT," if (i) the aggregate number of Truckstops so sold, transferred or 5.11disposed of pursuant to this subsection (d) shall not exceed ten since the Closing Date, (ii) the aggregate amount of Net Cash Proceeds received by the Company in respect of such sales, transfers and dispositions pursuant to this subsection (d) shall not exceed $30,000,000 since the Closing Date, (iii) the consideration received in any such transaction shall consist of immediately available funds in an amount equal to at least 75% of the then-current fair market value of the applicable asset(s) (with any instrument evidencing consideration in other than immediately available funds being pledged to the Collateral Agent as applicableCollateral pursuant to the Pledge Agreement), (iv) no Default or Event of Default shall have occurred and be continuing and no such event shall occur as the result of such proposed transaction and (v) prior to any such proposed transaction, each holder of a Note and the Collateral Agent shall have received a certificate of a Financial Officer of the Company describing the proposed transaction (including the consideration to be received) and certifying as to the compliance with the foregoing provisions on a prospective basis;
(e) sublicenses by the Company, either Guarantor or TAFSI to Franchisees and Network Operators, if any, of the trademarks and servicemarks owned by the Company, such Guarantor or TAFSI;
(f) sales, transfers and other dispositions of any portion of a Mortgaged Property in connection with the development of such property as permitted in, and in accordance with, the provisions of Section 10 of the Guarantee Agreement;
(g) sales, transfers and other dispositions of the parcels of real estate listed on Schedule 7.5(g) (which Schedule may be amended by the Company from time to time to substitute another parcel of real estate for any parcel of real estate that is then listed on such Schedule and has not been sold, transferred or otherwise disposed of on or prior to the date of such substitution) and the related Truckstop assets, with the related Net Cash Proceeds being applied in accordance with the provisions of Section 5.3 and the definition of the term "Prepayment Event";
(h) in the case of the Guarantors and TAFSI, (i) the acquisition of assets from, or shares or other equity interests in, any Subsidiary may dissolve, liquidate person in connection with a Permitted Business Acquisition or wind up its affairs at a Permitted Joint Venture and (ii) the merger of any time; provided that such dissolution, liquidation or winding up, person with and into one of the Guarantors as applicable, could not reasonably be expected to have a Material Adverse Effectrequired by the definition of the term "Permitted Business Acquisition;"
(i) discounts or forgiveness of account receivables in the ordinary course of business or in connection with collection or compromise thereof shall be leases permitted provided the account debtor is not an Affiliateby Section 7.8;
(j) Permitted Liens (to the extent constituting a conveyance sales of Property) shall be permitted;assets in connection with Sale and Leaseback Transactions permitted by Section 7.3; and
(k) BearingPoint may forgive the indebtedness outstanding under the Barents Group Loans; and
(l) any Loan Party may merge with sale, transfer or into any other Loan Party so long as a Borrower is the surviving entity in any merger involving a Borrower. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale disposition of any Collateral, asset by a Guarantor to TAFSI or any Collateral is sold as permitted the other Guarantor or by this Section 6.05, such Collateral (unless sold TAFSI to a Company) shall be sold free and clear Guarantor provided that the aggregate fair market value of the Liens created all assets transferred to TAFSI by the Security Documents, and the Administrative Agent shall take all actions deemed appropriate in order to effect the foregoingGuarantors does not exceed $3,000,000.
Appears in 1 contract
Samples: Senior Secured Note Exchange Agreement (Ta Operating Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its Property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that:
(a) Capital Expenditures by Borrowers and the Subsidiaries shall be permitted to the extent permitted by Section 6.08(d6.08(b);
(i) purchases or other acquisitions of inventory, materials, equipment and intangible assets and sales of inventory in the ordinary course of business shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted subject to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent2.10(b), seller financing, deferred payments or equity issued), (viii) sales of used, worn out, obsolete or surplus Property by any Company in the ordinary course of business and the abandonment or other sale or disposition Asset Sale of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole currently being conducted shall be permitted, (ixiii) subject to Section 2.09(b2.10(b), Asset Sales listed on Schedule 6.05(b) shall be permitted; and (x) subject to Section 2.09(b)the sale, Asset Sales not otherwise included lease or other disposal of any assets in clauses (b)(i) through (ix) of this an arm’s length transaction shall be permitted; provided that the aggregate consideration received in respect of all asset sales Asset Sales pursuant to this clause (b)(xb)(iii) shall not exceed $5.0 1.0 million in any four consecutive fiscal quarters of Borrowers, and (iv) subject to Section 2.10(b), the sale of all or substantially all of the assets of the Borrowers’ “Xxxxxx” silver business in an arm’s length transaction shall be permitted;
(c) Investments in connection with any such transaction may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers and the Subsidiaries may sell Cash Equivalents and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business;
(e) Borrowers and the Subsidiaries may lease (as lessee or lessor) real or personal Property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(f) the Transactions shall be permitted as contemplated by the Transaction Documents;
(g) Borrowers and the Subsidiaries may consummate Permitted Acquisitions;
(gh) (i) any Loan Party (other than Borrowers) may transfer or lease Property to, or acquire or lease Property from, any Loan Party; provided, that any such lease of any of the Mortgaged Real Property shall be made expressly subordinated to the applicable Mortgage, and (ii) any Loan Party (other than Holdings) may be merged into any other Loan Party (other than Holdings); provided, that, in any merger involving a Borrower, a Borrower shall be the surviving corporation; provided that the Lien Liens on and security interest in such Property granted or to be the Collateral granted in favor of the Administrative Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 or 5.11, as applicablemaintained;
(hi) any Subsidiary of a Borrower may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect;; and
(ij) discounts or forgiveness of account receivables accounts receivable in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided the account debtor is not an Affiliate;; and
(jk) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted;
(k) BearingPoint may forgive the indebtedness outstanding under the Barents Group Loans; and
(l) any Loan Party may merge with or into any other Loan Party so long as a Borrower is the surviving entity in any merger involving a Borrower. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall take all actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its Property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that:
(a) Capital Expenditures by Borrowers and the Subsidiaries shall be permitted to the extent permitted by Section 6.08(d6.08(b);
(i) purchases or other acquisitions of inventory, materials, equipment and intangible assets and sales of inventory in the ordinary course of business shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted subject to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent2.10(b), seller financing, deferred payments or equity issued), (viii) sales of used, worn out, obsolete or surplus Property by any Company in the ordinary course of business and the abandonment or other sale or disposition Asset Sale of Intellectual Property that is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole currently being conducted shall be permitted, (ixiii) subject to Section 2.09(b2.10(b), Asset Sales listed on Schedule 6.05(b) shall be permitted; and (x) subject to Section 2.09(b)the sale, Asset Sales not otherwise included in clauses (b)(i) through (ix) lease or other disposal of this any assets shall be permitted; provided that the aggregate consideration received in respect of all asset sales Asset Sales pursuant to this clause (b)(xb)(iii) shall not exceed $5.0 1.0 million in any four consecutive fiscal quarters of Borrowers and (iv) the sale of all or substantially all of the assets of the Borrowers’ “Gxxxxx” silver business in an arm’s length transaction shall be permitted;
(c) Investments in connection with any such transaction may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers and the Subsidiaries may sell Cash Equivalents and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business;
(e) Borrowers and the Subsidiaries may lease (as lessee or lessor) real or personal Property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(f) the Transactions shall be permitted as contemplated by the Transaction Documents;
(g) Borrowers and the Subsidiaries may consummate Permitted Acquisitions;
(gh) (i) any Loan Party (other than Borrowers) may transfer or lease Property to, or acquire or lease Property from, any Loan Party; provided, that any such lease of any of the Mortgaged Real Property shall be made expressly subordinated to the applicable Mortgage, and (ii) any Loan Party (other than Holdings) may be merged into any other Loan Party (other than Holdings); provided, that, in any merger involving a Borrower, a Borrower shall be the surviving corporation; provided that the Lien Liens on and security interest in such Property granted or to be the Collateral granted in favor of the Administrative Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 or 5.11, as applicablemaintained;
(hi) any Subsidiary of a Borrower may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect;; and
(ij) discounts or forgiveness of account receivables accounts receivable in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided the account debtor is not an Affiliate;; and
(jk) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted;
(k) BearingPoint may forgive the indebtedness outstanding under the Barents Group Loans; and
(l) any Loan Party may merge with or into any other Loan Party so long as a Borrower is the surviving entity in any merger involving a Borrower. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall take all actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future timetime unless such agreement includes provisions reasonably acceptable to the Administrative Agent as to the payment in full in cash of the Obligations and termination of the Commitments at the closing of such transaction) all or any part of its Property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets of any Person (or agree to do any of the foregoing at any future time), except that:
(a) Capital Expenditures by Borrowers Borrower and the Subsidiaries shall be permitted to the extent permitted by Section 6.08(d6.08(c);
(i) purchases or other acquisitions of inventory, materials, equipment and intangible assets and sales of inventory in the ordinary course of business shall be permitted, (ii) sales of equipment or software procured on behalf of a customer in the ordinary course of business shall be permitted, (iii) sales of equipment shall be permitted subject to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property or (2) the proceeds of such disposition are applied in accordance with Section 2.09; (iv) sales by any Foreign Subsidiary to another Foreign Subsidiary shall be permitted; (v) licenses of intellectual property rights by the Borrowers or any Subsidiary in the ordinary course of business shall be permitted; (vi) dispositions by the Borrowers or any Subsidiary consisting of leases and subleases of real property shall be permitted solely to the extent that such real property is not necessary for the normal conduct of operations of the Borrowers or such Subsidiary; (vii) dispositions by the Borrowers or any Subsidiary thereof of assets acquired in connection with any transaction permitted by Section 6.04 that the Borrowers or such subsidiary intended to sell at the time of such transaction shall be permitted; provided (1) such assets were identified in writing to the Administrative Agent at the time of such transaction and (2) the aggregate fair market value of such assets does not exceed fifteen percent of the aggregate purchase price paid in connection with such transaction (including, without limitation, all cash payments, Indebtedness and other obligations assumed, earn-out payments (valued at an amount to be agreed upon between the Borrowers and the Administrative Agent2.10(c), seller financing, deferred payments or equity issued), (viii) sales Asset Sales of used, negligible, worn out, uneconomical, obsolete or surplus Property by any Company in the ordinary course of business and the abandonment or other sale or disposition Asset Sale of Intellectual Property that is, in the reasonable judgment of BorrowersBorrower, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole shall be permitted, permitted and (ixiii) subject to Section 2.09(b2.10(c), Asset Sales listed on Schedule 6.05(b) shall be permitted; and (x) subject to Section 2.09(b)the sale, Asset Sales not otherwise included in clauses (b)(i) through (ix) lease or other disposal of this any assets shall be permitted; provided that the aggregate consideration received in respect of all asset sales Asset Sales pursuant to this clause (b)(xb)(iii) shall not exceed $5.0 million in any four consecutive fiscal quarters of BorrowersBorrower;
(c) Investments in connection with any such transaction may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers Borrower and the Subsidiaries may sell Cash Equivalents and use cash for purposes that are otherwise permitted by the terms of this Agreement in the ordinary course of business;
(e) Borrowers Borrower and the Subsidiaries may lease (as lessee or lessor) real or personal Property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(f) Borrowers the Transactions shall be permitted as contemplated by the Transaction Documents;
(g) Borrower and the Subsidiaries may consummate Permitted AcquisitionsAcquisitions (including the issuance of stock as part of the Acquisition Consideration to the extent otherwise permitted hereunder);
(gh) any Loan Party (other than Borrowers) may transfer Property or lease Property to, to or acquire or lease Property from, from any Loan PartyParty or any Company may be merged into Borrower or a Wholly-Owned Subsidiary (as long as Borrower or such Wholly-Owned Subsidiary is the surviving corporation of such merger and, in the case of such Wholly Owned Subsidiary, remains a Wholly Owned Subsidiary of Borrower); provided that the Lien on and security interest in such Property granted or to be granted in favor of the Administrative Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 5.11 or 5.11Section 5.12, as applicable;; and
(hi) Asset Sales by any Subsidiary may dissolve, liquidate or wind up its affairs at Company to any timeother Company (other than the Future Holding Company) shall be permitted; provided that such dissolution, liquidation or winding up, as applicable, could Asset Sale involving a Subsidiary that is not reasonably a Loan Party shall be expected to have a Material Adverse Effectotherwise in compliance with Section 6.05;
(ij) discounts or forgiveness of account receivables in the ordinary course of business or in connection with collection or compromise thereof shall be permitted provided the account debtor is not an AffiliateAffiliate (except with respect to Sponsor’s portfolio companies);
(jk) sales of non-core assets owned by the targets of Permitted Acquisitions and acquired as a result of such Permitted Acquisitions shall be permitted;
(l) Permitted Liens (to the extent constituting a conveyance of Property) shall be permitted;
(km) BearingPoint may forgive issuance of Equity Interests of Borrower or the indebtedness outstanding under the Barents Group Loans; andFuture Holding Company (including warrants or options or similar interests) to officers and employees pursuant to a stock ownership or purchase plan or compensation plan of Borrower shall be permitted;
(ln) any issuance of Equity Interests (including warrants or options or similar interests) to Borrower or, with the Agents’ prior written consent (following an explanation by Borrower to Agents of the benefit of such issuance resulting in a non-Wholly-Owned Subsidiary), another Loan Party Party, shall be permitted provided such Equity Interests are pledged (and such certificates are delivered) to Collateral Agent in accordance with the Security Agreement;
(o) Loan Parties may merge with or into any other Loan Party so long as a Borrower is the surviving entity in any merger involving a with Borrower; and
(p) creation and capitalization of Foreign Subsidiaries and the transfers of assets to such Foreign Subsidiaries to the extent permitted by and subject to the restrictions set forth in Sections 6.01(p) and 6.04(q). To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent Agents shall take all actions deemed appropriate in order to effect the foregoing.
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Samples: Credit Agreement (Broder Bros Co)
