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
Sources: Credit Agreement (Bearingpoint Inc), Credit Agreement (Bearingpoint Inc)
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, transfer, lease or otherwise dispose of (in one transaction or agree to do any in a series of the foregoing at any future timetransactions) all or any part of its Property assets (whether now owned or assetshereafter acquired), or purchase issue, sell, transfer or otherwise dispose of any Capital Stock of a Transaction Party, 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 other Person (whether by stock or agree to do any of the foregoing at any future timeasset purchase, merger or otherwise), except thatthat this Section 6.05 shall not prohibit:
(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 the purchase and intangible assets and sales sale of inventory in the ordinary course of business shall be permittedby the Company, (ii) sales the acquisition or lease of equipment or software procured on behalf of a customer any other operating asset in the ordinary course of business shall be permittedby the Company consistent with the fulfillment of the Mining Activities contemplated by the Pro Forma Production and Financial Projections, (iii) sales the sale 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 outsurplus, obsolete or surplus Property worn out equipment or other property by any the Company in the ordinary course of business and in an aggregate amount not to exceed $50,000 over 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) term of this shall be permitted; provided that Agreement, or (iv) the aggregate consideration received in respect sale by the Company 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;
(eb) Borrowers [Intentionally omitted];
(c) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(d) the Subsidiaries may lease (as lessee or lessor) real or personal Property sale of defaulted receivables of the Company in the ordinary course of its 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 not as part 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 an accounts 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 Loansfinancing transaction; and
(le) any Loan Party may merge with the issuance of the Series A Shares issuable to the Investor pursuant to this Agreement and the shares of Common Stock issuable upon the conversion thereof. Notwithstanding anything to the contrary contained in this Section 6.05, (i) no sale, transfer or into any other Loan Party so long as a Borrower disposition of assets shall be permitted by this Section 6.05 unless such disposition is the surviving entity in any merger involving a Borrower. To the extent the Required Lenders waive the provisions for fair market value, and (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) of this Section 6.05 with respect to unless such disposition is for cash consideration unless the sale of any CollateralInvestor have otherwise consented in writing, which consent shall not be unreasonably withheld 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 foregoingdelayed.
Appears in 2 contracts
Sources: Investment Agreement (Desert Hawk Gold Corp.), Investment Agreement (Desert Hawk Gold 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 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
Sources: 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 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc., a Delaware corporation, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Operations, Inc., a Delaware corporation, and ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ 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(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’ “▇▇▇▇▇▇” 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, enter into any Asset Sale, or otherwise 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) all or any part of the Property Property, Equity Interests, 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(b);
(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(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 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, (ixiii) subject sale of Equipment or Real Property, as applicable, or any portion thereof, due to Section 2.09(b)the termination of operations at (A) 3▇ ▇▇▇▇▇▇▇ ▇▇., Taunton MA 02780, (B) 4▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and (C) 7▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 01075, in each case, on terms and pursuant to documentation reasonably acceptable to the Administrative Agent and the Collateral Agent, (iv) Permitted Asset Sales listed on Schedule 6.05(b) by all Domestic Loan Parties aggregating no more than $10.0 million less any prepayments made pursuant to the definition of Permitted Fixed Asset Exchange shall be permitted; , (v) Permitted Asset Sales aggregating no more than $25.0 million less any prepayments made pursuant to the definition of Permitted Fixed Asset Exchange shall be permitted by a Foreign Subsidiary after the Closing Date and (xvi) subject to Section 2.09(b), Permitted Fixed Asset Sales not otherwise included in clauses (b)(i) through (ix) of this Exchanges 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 in connection with any such transaction may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers Holdings and the its Subsidiaries may sell Cash Equivalents and use cash for purposes that are not otherwise permitted prohibited 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 and the Subsidiaries Transactions shall be permitted as contemplated by the Transaction Documents;
(g) Borrower, any Borrowing Base Guarantor (other than Holdings) or, in the case of any Permitted Non-Loan Funded Acquisition, any Foreign Subsidiary may consummate Permitted Acquisitions;
(gh) any Loan Party (other than BorrowersHoldings, Intermediate Holdings or Borrower) may transfer Property or lease Property to, to or acquire or lease Property from, from any Loan PartyParty or any Loan Party (other than Holdings, Borrower and Intermediary Holdings) may be merged into another Domestic or Canadian Loan Party as long as Borrower, Holdings or Intermediary Holdings is the surviving corporation of such merger; 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;
(hi) any Subsidiary (other than Borrower or any Borrowing Base 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;
(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 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 Supermajority 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’ “G▇▇▇▇▇” 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(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 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
Sources: 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 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc., a Delaware corporation, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Operations, Inc., a Delaware corporation, and ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ 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, enter into any Asset Sale, or otherwise 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) all or any part of the Property Property, Equity Interests, 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(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(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 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, (ixiii) subject sale of Equipment or Real Property, as applicable, or any portion thereof, due to Section 2.09(b)the termination of operations at (A) 3▇ ▇▇▇▇▇▇▇ ▇▇., Taunton MA 02780, (B) 4▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and (C) 7▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 01075, in each case, shall be permitted on terms and pursuant to documentation reasonably acceptable to the Administrative Agent, (iv) Permitted Asset Sales listed on Schedule 6.05(b) by all Loan Parties aggregating no more than $10.0 million less any prepayments made pursuant to the definition of Permitted Fixed Asset Exchange shall be permitted; , (v) Asset Sales shall be permitted by any Foreign Subsidiary as long as, individually and in the aggregate, such Assets Sales do not comprise all or substantially all of the Property of any Foreign Subsidiary that is a direct Subsidiary of a Loan Party and (xvi) subject to Section 2.09(b), Permitted Fixed Asset Sales not otherwise included in clauses (b)(i) through (ix) of this Exchanges 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 in connection with any such transaction may be made and sold to the extent permitted by Section 6.04;
(d) Borrowers Holdings and the its Subsidiaries may sell Cash Equivalents and use cash for purposes that are not otherwise permitted prohibited 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 and the Subsidiaries Transactions shall be permitted as contemplated by the Transaction Documents;
(g) Borrower, any Borrowing Base Guarantor (other than Holdings) or, in the case of any Permitted Non-Loan Funded Acquisition, any Foreign Subsidiary may consummate Permitted Acquisitions, and Holdings may consummate Permitted Non-Loan Funded Acquisitions;
(gh) any Loan Party (other than BorrowersHoldings, Intermediate Holdings or Borrower) may transfer Property or lease Property to, to or acquire or lease Property from, from any Loan PartyParty or any Loan Party (other than Holdings, Borrower and Intermediary Holdings) may be merged into another Domestic or Canadian Loan Party as long as Borrower, Holdings or Intermediary Holdings is the surviving corporation of such merger; 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;
(hi) any Foreign Subsidiary may transfer Property or lease to or acquire or lease Property from any Foreign Subsidiary or any Foreign Subsidiary may be merged into another Foreign Subsidiary so long as, in the case of any merger involving a Foreign Subsidiary that is a direct Subsidiary of a Loan Party, the surviving corporation of such merger is a direct Subsidiary of a Loan Party; provided, that the Lien on and security interest in the Equity Interests of any such first-tier Foreign Subsidiary shall be maintained or created in accordance with the provisions of Section 5.11;
(j) any Subsidiary (other than Borrower or any Borrowing Base 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;
(ik) 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;
(jl) 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
(lm) any Loan Party General Cable Spain may merge with consummate the GCC Spain Acquisition on or into any other Loan Party so long as a Borrower is the surviving entity in any merger involving a Borrowerprior to December 31, 2005. To the extent the Required Supermajority 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 property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property property or assets of any Person 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 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 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 Borrowersthe relevant Borrower, 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)(xa)(iii) shall not exceed $5.0 million 1,000,000 individually or $5,000,000 in any four consecutive fiscal quarters of BorrowersHoldings;
(cb) Investments in connection with any such transaction may be made and sold to the extent permitted by Section 6.04;
(dc) 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;
(ed) Borrowers and the Subsidiaries may lease (as lessee or lessor) real or personal Property property and may guaranty such lease, in each case, in the ordinary course of business and in accordance with the applicable Security Documents;
(e) the Transactions shall be permitted as contemplated by the Transaction Documents;
(f) Borrowers and the Subsidiaries may consummate Permitted Acquisitions;
(g) any Loan Party (other than Borrowers) may transfer property or lease Property to, to or acquire or lease Property from, property from any Loan PartyParty and any Loan Party may be merged into another Loan Party (as long as such Loan Party is the surviving corporation of such merger and remains a direct or indirect Wholly Owned Subsidiary of Holdings) or any other Wholly Owned Subsidiary Guarantor; provided that the Lien on and security interest in such Property 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;; and
(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 (Asset Sales by any Company to the extent constituting a conveyance of Property) any other Company shall be permitted;
(k) BearingPoint may forgive the indebtedness outstanding under the Barents Group Loans; and
(l) any provided that such Asset Sale involving a Subsidiary that it is not a Loan Party may merge be made in compliance with or into any other Loan Party so long as a Borrower is the surviving entity in any merger involving a BorrowerSection 6.05. 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 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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Sources: 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 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