Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted: (a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower; (b) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party; or (iii) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower; (c) any transaction permitted pursuant to Section 7.05; (d) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 50% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and (e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Kona Grill Inc), Credit Agreement (Kona Grill Inc)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger merger, consolidation or consolidationamalgamation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, that each of the following shall be permitted:
(a) (i) the merger, consolidation or amalgamation of (iA) any Restricted Subsidiary of the any Borrower with or into the such Borrower, ; provided the that such Borrower is the surviving or continuing or resulting corporation; (iiB) any Restricted Subsidiary of the any Borrower with or into any Subsidiary Guarantor, ; provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iiiC) any Foreign Subsidiary of the any Borrower that is not a Credit Party with or into any other Foreign Subsidiary of any Borrower that is not a Credit Party or (ii) any Holding Company Merger; provided that, substantially concurrently with the Borrowerconsummation of such Holding Company Merger, (x) New Parent shall provide a guarantee of the Obligations in a form reasonably satisfactory to the Administrative Agent, (y) New Parent shall deliver to the Administrative Agent the documents required of a U.S. Subsidiary or Credit Party under Sections 6.09(a) and 6.10 (including in respect of the Equity Interests of the U.S. Borrower held by the New Parent. but excluding, for the avoidance of doubt, any Security Document in regard of the Equity Interests of New Parent), in each case, in a form reasonably satisfactory to the Administrative Agent and (z) the Administrative Agent, New Parent and U.S. Borrower shall negotiate in good faith to execute amendments to the Loan Documents such that the representations and warranties, covenants, events of default and other similar provisions herein and therein that currently apply to the U.S. Borrower also apply to New Parent; provided, further, that this Section 7.02(a) shall supersede any provisions in Section 11.12 to the contrary;
(b) so long as no Specified Event of Default has occurred and is continuing, or would result therefrom, any Asset Sale by (i) the Borrower any U.S. Credit Party to any other U.S. Credit Party, (ii) any Restricted Subsidiary of the Borrower that is not a Credit Party to any Credit Party; or (iii) any Foreign Non-U.S. Subsidiary of the U.S. Borrower that is an EMEA Credit Party to any other Foreign EMEA Credit Party, or (iv) any Restricted Subsidiary of that is not a Credit Party to any other Restricted Subsidiary that is not a Credit Party; provided that, to the Borrowerextent any such Asset Sale constitutes an Investment, it shall be permitted under Section 7.05 (other than Section 7.05(q));
(c) any transaction permitted pursuant to Section 7.057.05 or 7.06;
(d) in addition to any Asset Sale permitted above, the U.S. Borrower or any of its Restricted Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair market value and at least 5075% of such consideration consists of cash; , (ii) in the case of any Asset Sale involving consideration in excess of $250,00020,000,000, at least five three (3) Business Days prior to the date of completion of such Asset Sale, the U.S. Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; transaction and (iii) the aggregate amount U.S. Borrower or such Restricted Subsidiary uses the proceeds of all such Asset Sales made pursuant Sale to this subpart during any fiscal year of prepay the Borrower shall not exceed $1,000,000 in any fiscal year Loans as and $3,000,000 in to the aggregate for all such Asset Sales over the life of this Agreement; andextent required by Section 2.13(c)(v);
(e) so long as no Event of Default has occurred and is continuing, or would result therefrom, the U.S. Borrower or any of its Restricted Subsidiaries may dispose of non-core assets acquired in connection with any Permitted Acquisition consummated after the Closing Date;
(f) the sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) in addition to any Asset Sale permitted herein, the U.S. Borrower or any of its Restricted Subsidiaries may consummate other Asset Sales in an amount not to exceed, in any fiscal year, the greater of (x) $100,000,000 and (y) an amount equal to 20% of Pro Forma EBITDA for the Testing Period most recently ended, provided, that the U.S. Borrower or such Restricted Subsidiary uses the proceeds of such Asset Sale to prepay the Loans as and to the extent required by Section 2.13(c)(v);
(h) the U.S. Borrower or any Subsidiary may make any Acquisition that is a Permitted AcquisitionAcquisition or any Investment that is not prohibited by the terms hereof;
(i) so long as no Event of Default has occurred and is continuing, provided or would result therefrom, any Restricted Subsidiary other than the EMEA Borrower may dissolve, liquidate or wind up its affairs (x) if the U.S. Borrower determines in good faith that all such dissolution, liquidation or winding up is in the best interests of the conditions contained Credit Parties taken as a whole and (y) so long as, if such Restricted Subsidiary is a Guarantor, the assets or business of such Restricted Subsidiary shall be transferred to, or otherwise owned and conducted by, a Credit Party;
(j) Ordinary Course Dispositions;
(k) the settlement, termination or unwinding of any Hedging Obligations or Permitted Equity Derivative; and
(l) dispositions of Equity Interests in any Subsidiary prior to the definition time such Subsidiary becomes a wholly-owned Subsidiary, in each case pursuant to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the term Permitted Acquisition are satisfiedEquity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such person becoming a Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (GTT Communications, Inc.), Credit Agreement (GTT Communications, Inc.)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party Neither Holdings nor the Borrower will, nor will any Credit Party either of them permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree in writing to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) the merger, consolidation or amalgamation of the Borrower with or into Holdings, provided that Holdings is the surviving entity (it being agreed that in the event such a transaction occurs (i) Holdings shall become the Borrower for all purposes under this Agreement, (ii) Section 7.13 of the Credit Agreement shall no longer be effective and (iii) each other provision of this Agreement applicable to either Holdings or the Borrower shall then be applicable to Holdings).
(c) the merger of any Domestic Subsidiary that is not required to be a Subsidiary Guarantor hereunder into another Domestic Subsidiary that is not required to be a Subsidiary Guarantor;
(d) the voluntary dissolution or liquidation of any Subsidiary that is an inactive or dormant Non-Material Subsidiary;
(e) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party; , or (iii) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(cf) RBC Nice Bearings, Inc. may sell the Kulpsville Property, and any transaction permitted pursuant to Section 7.05improvements thereon, so long as the consideration received therefor is at least the fair market value thereof, and the Borrower or any Subsidiary may sell or otherwise dispose of other owned Real Property so long as the aggregate amount of all such other Asset Sales does not exceed $1,000,000;
(dg) the Borrower or any Subsidiary may make any Permitted Acquisition, provided that all of the conditions contained in such definition are satisfied; and
(h) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that that: (i) in the case of any Asset Sale involving consideration for each of $5,000,000 or more but less than $10,000,000, the Borrower shall provide to the Administrative Agent, within 30 days of the consummation of such Asset Sale, a description of such Asset Sale, notice of the date such Asset Sale represents fair value was consummated, a description of the sale price or other consideration for such Asset Sale and at least 50% of such consideration consists of cashother information as the Administrative Agent shall reasonably request; (ii) in the case of any Asset Sale involving consideration in excess of $250,00010,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by of an Authorized OfficerOfficer of the Borrower, which certificate shall contain (A) a description of the proposed transactionAsset Sale, the date such transaction Asset Sale is scheduled to be consummated, the estimated sale price or other consideration for such transactionAsset Sale, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from the consummation of such transactionAsset Sale; (iii) in all cases, if such Asset Sale involves consideration in excess of $5,000,000, the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; and (iiiiv) in all cases, the aggregate amount of all such Asset Sales made pursuant to this subpart Section 7.2(h) during any fiscal year of the Borrower Holdings shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied25,000,000.
Appears in 1 contract
Samples: Credit Agreement (RBC Bearings INC)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Parent Borrower will not, nor will any Credit Party the Parent Borrower permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger consummate a merger, consolidation or consolidationamalgamation, (iii) make any Acquisition or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Parent Borrower with or into the any Borrower, provided the (A) such Borrower is the surviving or surviving, continuing or resulting corporationPerson or (B) if the Person formed by, surviving or resulting from any such merger, consolidation or amalgamation (any such Person, the “Successor Borrower”) is not such Borrower (the “Previous Borrower”), (1) the Successor Borrower shall be a wholly-owned domestic Subsidiary of the Parent Borrower and shall expressly assume all the obligations of the Previous Borrower under this Agreement and the other Loan Documents to which the Previous Borrower was a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (2) each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Guaranty confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under this Agreement at least to the same extent as it applied the those of the Previous Borrower and (3) each Credit Party, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Security Document confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement at least to the same extent as it applied the those of the Previous Borrower; provided further that if the foregoing requirements set forth in clauses (1) through (3) above are satisfied, the Successor Borrower will succeed to, and be substituted for, the Previous Borrower under this Agreement, (ii) any Subsidiary of the Parent Borrower with or into any Subsidiary Guarantor, provided that the surviving or surviving, continuing or resulting corporation is Person is, or immediately after giving effect thereto, becomes, a Subsidiary Guarantor; or , (iii) any Foreign Subsidiary of the Parent Borrower with or that is not a Credit Party into any other Foreign Subsidiary of the BorrowerParent Borrower that is not a Credit Party, (iv) any Subsidiary Guarantor into any other Credit Party and (v) subject to the foregoing provisions of this Section 7.01(a), any Subsidiary of the Parent Borrower into any other Subsidiary of the Parent Borrower to the extent permitted under Section 7.04;
(b) any Asset Sale by or other disposition of property or assets (i) to the Parent Borrower to any or other Credit Party, (ii) from any Subsidiary of the Parent Borrower that is not a Credit Party to any other Subsidiary of the Parent Borrower that is not a Credit Party; or Party and (iii) from the Parent Borrower or any Foreign Subsidiary of the Parent Borrower to any other Foreign Subsidiary of the BorrowerParent Borrower to the extent permitted under Section 7.04;
(c) any transaction permitted pursuant to (i) Section 7.04 or (ii) Section 7.05;
(d) any Restricted Subsidiary of the Parent Borrower may liquidate, amalgamate or dissolve if (x) the Parent Borrower determines in good faith that such liquidation, amalgamation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor or Additional Borrower, any assets or business not otherwise disposed of or transferred in accordance with this Section 7.01, Section 7.04 or Section 7.05, or, in the case of any such business, discontinued shall be transferred to, or otherwise owned or conducted by, the Parent Borrower, another Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(e) the Transactions may be consummated;
(f) any Restricted Subsidiary of the Parent Borrower may consummate a merger, dissolution, liquidation, amalgamation, consolidation or disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.01, an Investment otherwise permitted under Section 7.04 or a Restricted Payment otherwise permitted under Section 7.05;
(g) the Parent Borrower and its Restricted Subsidiaries may sell, compromise or transfer accounts receivable, in each case other than in connection with a financing transaction;
(h) any disposition of Capital Stock in, or Indebtedness or other securities of, (i) a Restricted Subsidiary that is not a Material Subsidiary or (ii) an Unrestricted Subsidiary;
(i) the Parent Borrower or any Restricted Subsidiary may consummate any Sale and Lease-Back Transaction (to the extent constituting an Asset Sale);
(j) in addition to any Asset Sale permitted aboveby this Section 7.01, the Parent Borrower or any of its Restricted Subsidiaries may consummate any Asset SaleSale (other than a Sale and Lease-Back Transaction) for Fair Market Value, provided that (i) at the consideration for each time of the execution of the definitive agreement relating to such Asset Sale represents fair value and at least 50% of such consideration consists of cash; Sale, no Default shall be continuing, (ii) in at the case time of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower no Specified Event of Default shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transactioncontinuing, and (Bii) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all such with respect to any Asset Sales made Sale pursuant to this subpart during clause (j) for a purchase price in excess of $3.0 million, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, that for purposes of this clause (ii), any fiscal year Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value not in excess of $3.0 million shall be deemed to be cash (with the Fair Market Value of each item of Designated Non-Cash Consideration being determined at the time received and without giving effect to subsequent changes in value); provided further that no such Asset Sale or series of related Asset Sales shall constitute the sale, transfer or disposition of all or substantially all of the assets of the Parent Borrower shall not exceed $1,000,000 in and its Restricted Subsidiaries;
(k) any fiscal year and $3,000,000 Asset Sale involving property (i) no longer used or useful in the aggregate for all such Asset Sales over conduct of the life business of this Agreementthe Parent Borrower and the Restricted Subsidiaries or (ii) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not used or useful to the core or principal business of the Parent Borrower and the Restricted Subsidiaries; and
(el) the Borrower or any Restricted Subsidiary may make any Acquisition that is a Permitted Acquisition, ; provided that the aggregate amount of Consideration paid in respect of all such Permitted Acquisitions of any Restricted Subsidiary that does not become a Credit Party (or assets of which do not become part of the conditions contained in the definition of the term Permitted Acquisition are satisfiedCollateral) shall not exceed $15.0 million.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Parent Borrower will not, nor will any Credit Party the Parent Borrower permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger consummate a merger, consolidation or consolidationamalgamation, (iii) make any Acquisition or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Parent Borrower with or into the any Borrower, ; provided the such Borrower is the surviving or surviving, continuing or resulting corporation; Person, (ii) any Subsidiary of the Parent Borrower with or into any Subsidiary Guarantor, provided that the surviving or surviving, continuing or resulting corporation is Person is, or immediately after giving effect thereto, becomes, a Subsidiary Guarantor; or , (iii) any Foreign Subsidiary of the Parent Borrower with or that is not a Credit Party into any other Foreign Subsidiary of the BorrowerParent Borrower that is not a Credit Party, (iv) any Subsidiary Guarantor into any other Credit Party and (v) subject to the foregoing provisions of this Section 7.01(a), any Subsidiary of the Parent Borrower into any other Subsidiary of the Parent Borrower to the extent permitted under Section 7.04;
(b) any Asset Sale by or other disposition of property or assets (i) to the Parent Borrower to any or other Credit Party, (ii) from any Subsidiary of the Parent Borrower that is not a Credit Party to any other Subsidiary of the Parent Borrower that is not a Credit Party; or Party and (iii) from the Parent Borrower or any Foreign Subsidiary of the Parent Borrower to any other Foreign Subsidiary of the BorrowerParent Borrower to the extent permitted under Section 7.04;
(c) any transaction permitted pursuant to (i) Section 7.04 or (ii) Section 7.05;
(d) any Restricted Subsidiary of the Parent Borrower may liquidate, amalgamate or dissolve if (x) the Parent Borrower determines in good faith that such liquidation, amalgamation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor or Additional Borrower, any assets or business not otherwise disposed of or transferred in accordance with this Section 7.01 or Section 7.04 (other than Section 7.04(k)(i)) or Section 7.05, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Parent Borrower, another Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(e) the Transactions may be consummated;
(f) any Restricted Subsidiary of the Parent Borrower may consummate a merger, dissolution, liquidation, amalgamation, consolidation or disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.01, an Investment otherwise permitted under Section 7.04 (other than Section 7.04(k)(i)) or a Restricted Payment otherwise permitted under Section 7.05;
(g) the Parent Borrower and its Restricted Subsidiaries may sell, compromise or transfer accounts receivable, in each case, in the ordinary course of business and other than in connection with a financing transaction;
(h) any disposition of Capital Stock in, or Indebtedness or other securities of, (i) a Restricted Subsidiary that is not a Material Subsidiary or (ii) an Unrestricted Subsidiary;
(i) the Parent Borrower or any Restricted Subsidiary may consummate any Sale and Lease-Back Transaction (to the extent constituting an Asset Sale);
(j) in addition to any Asset Sale permitted aboveby this Section 7.01, the Parent Borrower or any of its Restricted Subsidiaries may consummate any Asset Sale, Sale (other than a Sale and Lease-Back Transaction) for Fair Market Value; provided that (i) at the consideration for each time of the execution of the definitive agreement relating to such Asset Sale represents fair value and at least 50% of such consideration consists of cash; Sale, no Default shall be continuing, (ii) in at the case time of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, shall be continuing or would result from consummation of such transaction; therefrom, and (iii) the aggregate amount of all such with respect to any Asset Sales made Sale pursuant to this subpart during clause (j) for a purchase price in excess of $3,000,000, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 7.02); provided, that for purposes of this clause (iii), any fiscal year Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess of $3,000,000 (with the Fair Market Value of each item of Designated Non-Cash Consideration being determined at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash; provided, further, that no such Asset Sale or series of related Asset Sales shall constitute the sale, transfer or disposition of all or substantially all of the assets of the Parent Borrower shall not exceed $1,000,000 in and its Restricted Subsidiaries;
(k) any fiscal year and $3,000,000 Asset Sale involving property (i) no longer used or useful in the aggregate for all such Asset Sales over conduct of the life business of this Agreementthe Parent Borrower and the Restricted Subsidiaries, (ii) that is obsolete or worn out or (iii) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not used or useful to the core or principal business of the Parent Borrower and the Restricted Subsidiaries; and
(el) the Borrower or any Restricted Subsidiary may make any Acquisition that is a Permitted Acquisition, ; provided that the aggregate amount of Consideration paid in respect of all such Permitted Acquisitions of any Restricted Subsidiary that does not become a Credit Party (or assets of which do not become part of the conditions contained in the definition of the term Permitted Acquisition are satisfiedCollateral) shall not exceed $17,500,000.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Parent Borrower will not, nor will any Credit Party the Parent Borrower permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger consummate a merger, consolidation or consolidationamalgamation, (iii) make any Acquisition or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Parent Borrower with or into the any Borrower, provided the (A) such Borrower is the surviving or surviving, continuing or resulting corporationPerson or (B) if the Person formed by, surviving or resulting from any such merger, consolidation or amalgamation (any such Person, the “Successor Borrower”) is not such Borrower (the “Previous Borrower”),
(1) the Successor Borrower shall expressly assume all the obligations of the Previous Borrower under this Agreement and the other Loan Documents to which the Previous Borrower was a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (2) each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Guaranty confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under this Agreement at least to the same extent as it applied the those of the Previous Borrower and (3) each Credit Party, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Security Document confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement at least to the same extent as it applied the those of the Previous Borrower; provided further that if the foregoing requirements set forth in clauses (1) through (3) above are satisfied, the Successor Borrower will succeed to, and be substituted for, the Previous Borrower under this Agreement, (ii) any Subsidiary of the Parent Borrower with or into any Subsidiary Guarantor, provided that the surviving or surviving, continuing or resulting corporation is Person is, or immediately after giving effect thereto, becomes, a Subsidiary Guarantor; or , (iii) any Foreign Subsidiary of the Parent Borrower with or that is not a Credit Party into any other Foreign Subsidiary the Parent Borrower that is not a Credit Party, (iv) any Subsidiary Guarantor into any other Credit Party and (v) any Subsidiary of the BorrowerParent Borrower into any other Subsidiary of the Parent Borrower to the extent permitted under Section 7.04;
(b) any Asset Sale by or other disposition of property or assets (i) to the Parent Borrower to any or other Credit Party, (ii) from any Subsidiary of the Parent Borrower that is not a Credit Party to any other Subsidiary of the Parent Borrower that is not a Credit Party; or Party and (iii) from the Parent Borrower or any Foreign Subsidiary of the Parent Borrower to any other Foreign Subsidiary of the BorrowerParent Borrower to the extent permitted under Section 7.04;
(c) any transaction permitted pursuant to Section 7.04 or Section 7.05; Table of Contents
(d) any Restricted Subsidiary of the Parent Borrower may liquidate, amalgamate or dissolve if (x) the Parent Borrower determines in good faith that such liquidation, amalgamation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, any assets or business not otherwise disposed of or transferred in accordance with this Section 7.01, Section 7.04 or Section 7.05, or, in the case of any such business, discontinued shall be transferred to, or otherwise owned or conducted by, the Parent Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(e) the Transactions may be consummated;
(f) any Restricted Subsidiary of the Parent Borrower may consummate a merger, dissolution, liquidation, amalgamation, consolidation or disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.01, an Investment otherwise permitted under Section 7.04 or a Restricted Payment otherwise permitted under Section 7.05;
(dg) the Parent Borrower and its Restricted Subsidiaries may sell or transfer accounts receivable, so long as the Net Cash Proceeds of any Asset Sale pursuant to this clause (g) are offered to prepay the Term Loans pursuant to Section 2.15(c)(v) (without reinvestment);
(h) any disposition of Capital Stock in, or Indebtedness or other securities of, (i) a Restricted Subsidiary that is not a Material Subsidiary or (ii) an Unrestricted Subsidiary;
(i) the Parent Borrower or any Restricted Subsidiary may consummate any Sale and Lease-Back Transaction (to the extent constituting an Asset Sale) so long as the Net Cash Proceeds from one or more Sale and Lease-Back Transactions of property or properties having a Fair Market Value in excess of $7.5 million in the aggregate shall be used to prepay Loans pursuant to Section 2.15(c)(v) (any Sale and Lease-Back Transaction of property or properties having a Fair Market Value equal to or less than such amount in the aggregate is herein referred to as a “Permitted Sale and Lease-Back Transaction”);
(j) in addition to any Asset Sale permitted above, the Parent Borrower or any of its Restricted Subsidiaries may consummate any Asset SaleSale (other than a Sale and Lease-Back Transaction) for Fair Market Value, provided that (i) at the consideration for each time of the execution of the definitive agreement relating to such Asset Sale represents fair value and at least 50% of such consideration consists of cash; Sale, no Default shall be continuing, (ii) in at the case time of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower no Specified Event of Default shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transactioncontinuing, and (Bii) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all such with respect to any Asset Sales made Sale pursuant to this subpart during clause (j) for a purchase price in excess of $7.5 million, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, that for purposes of this clause (ii), any fiscal year Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value not in excess of $7.5 million shall be deemed to be cash (with the Fair Market Value of each item of Designated Non-Cash Consideration being determined at the time received and without giving effect to subsequent changes in value);
(k) any Asset Sale (other than a Sale and Lease-Back Transaction) involving property (i) no longer used or useful in the conduct of the business of the Parent Borrower shall and the Restricted Subsidiaries or (ii) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not exceed $1,000,000 in any fiscal year used or useful to the core or principal business of the Parent Borrower and $3,000,000 in the aggregate for all such Asset Sales over the life Restricted Subsidiaries; and Table of this Agreement; andContents
(el) the Parent Borrower or any Restricted Subsidiary may make any Acquisition that is a Permitted Acquisition, ; provided that the aggregate amount of Consideration paid in respect of all such Permitted Acquisitions of the conditions contained in the definition of the term Permitted Acquisition are satisfiedany Restricted Subsidiary that does not become a Credit Party shall not exceed an amount equal to $50.0 million.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger merger, consolidation or consolidationamalgamation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, that each of the following shall be permitted:
(ai) the merger, consolidation or amalgamation of (iA) any Restricted Subsidiary of the any Borrower with or into the such Borrower, ; provided the that such Borrower is the surviving or continuing or resulting corporation; (iiB) any Restricted Subsidiary of the any Borrower with or into any Subsidiary Guarantor, ; provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iiiC) any Foreign Subsidiary of the any Borrower that is not a Credit Party with or into any other Foreign Subsidiary of any Borrower that is not a Credit Party or (ii) any Holding Company Merger; provided that, substantially concurrently with the Borrowerconsummation of such Holding Company Merger, (x) New Parent shall provide a guarantee of the Obligations in a form reasonably satisfactory to the Administrative Agent, (y) New Parent shall deliver to the Administrative Agent the documents required of a U.S. Subsidiary or Credit Party under Sections 6.09(a) and 6.10 (including in respect of the Equity Interests of the U.S. Borrower held by the New Parent. but excluding, for the avoidance of doubt, any Security Document in regard of the Equity Interests of New Parent), in each case, in a form reasonably satisfactory to the Administrative Agent and (z) the Administrative Agent, New Parent and U.S. Borrower shall negotiate in good faith to execute amendments to the Loan Documents such that the representations and warranties, covenants, events of default and other similar provisions herein and therein that currently apply to the U.S. Borrower also apply to New Parent; provided, further, that this Section 7.02(a) shall supersede any provisions in Section 11.12 to the contrary;
(b) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party; or (iii) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(c) any transaction permitted pursuant to Section 7.05;
(d) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 50% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that so long as no Default or Specified Event of Default has occurred and is continuing, or would result from consummation of such transactiontherefrom, any Asset Sale by (i) any U.S. Credit Party to any other U.S. Credit Party, (ii) any Restricted Subsidiary that is not a Credit Party to any Credit Party; and (iii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year Non-U.S. Subsidiary of the U.S. Borrower shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisitionan EMEA Credit Party to any other EMEA Credit Party, provided or (iv) any Restricted Subsidiary that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied.is not
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries (other than an Excluded Subsidiary so long as such Excluded Subsidiary, to the extent it survives any such transaction, continues to constitute an Excluded Subsidiary hereunder following such transaction) to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, or (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party; or (iii) any Foreign Subsidiary of the Borrower that is not a Credit Party to any other Foreign Subsidiary of the BorrowerBorrower that is not a Credit Party;
(c) any transaction permitted pursuant to Section 7.05;
(d) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 5075% of such consideration consists of cash; (ii) in the case of any Asset Sale involving total consideration in excess of $250,0005,000,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 10,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreementyear; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfiedsatisfied in connection therewith.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Parent Borrower will not, nor will any Credit Party the Parent Borrower permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger consummate a merger, consolidation or consolidationamalgamation, (iii) make any Acquisition or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, that each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Parent Borrower with or into the any Borrower, ; provided the such Borrower is the surviving or surviving, continuing or resulting corporation; Person, (ii) any Subsidiary of the Parent Borrower with or into any Subsidiary Guarantor, ; provided that the surviving or surviving, continuing or resulting corporation is Person is, or immediately after giving effect thereto, becomes, a Subsidiary Guarantor; or , (iii) any Foreign Subsidiary of the Parent Borrower with or that is not a Credit Party into any other Foreign Subsidiary of the BorrowerParent Borrower that is not a Credit Party, (iv) any Subsidiary Guarantor into any other Credit Party and (v) subject to the foregoing provisions of this Section 7.01(a), any Subsidiary of the Parent Borrower into any other Subsidiary of the Parent Borrower to the extent permitted under Section 7.04;
(b) any Asset Sale by or other disposition of property or assets (i) to the Parent Borrower to any or other Credit Party, (ii) from any Subsidiary of the Parent Borrower that is not a Credit Party to any other Subsidiary of the Parent Borrower that is not a Credit Party; or Party and (iii) from the Parent Borrower or any Foreign Subsidiary of the Parent Borrower to any other Foreign Subsidiary of the BorrowerParent Borrower to the extent permitted under Section 7.04;
(c) any transaction permitted pursuant to (i) Section 7.04 or (ii) Section 7.05;
(d) any Restricted Subsidiary of the Parent Borrower may liquidate, amalgamate or dissolve if (x) the Parent Borrower determines in good faith that such liquidation, amalgamation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor or Additional Borrower, any assets or business not otherwise disposed of or transferred in accordance with this Section 7.01, Section 7.04 (other than Section 7.04(k)(i)) or Section 7.05, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Parent Borrower, another Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(e) the Transactions may be consummated;
(f) any Restricted Subsidiary of the Parent Borrower may consummate a merger, dissolution, liquidation, amalgamation, consolidation or disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.01, an Investment otherwise permitted under Section 7.04 (other than Section 7.04(k)(i)) or a Restricted Payment otherwise permitted under Section 7.05;
(g) the Parent Borrower and its Restricted Subsidiaries may sell, compromise or transfer accounts receivable, in each case, in the ordinary course of business and other than in connection with a financing transaction;
(h) any disposition of Capital Stock in, or Indebtedness or other securities of, (i) a Restricted Subsidiary that is not a Material Subsidiary or (ii) an Unrestricted Subsidiary;
(i) the Parent Borrower or any Restricted Subsidiary may consummate any Sale and Lease-Back Transaction (to the extent constituting an Asset Sale);
(j) in addition to any Asset Sale permitted aboveby this Section 7.01, the Parent Borrower or any of its Restricted Subsidiaries may consummate any Asset Sale, Sale (other than a Sale and Lease-Back Transaction) for Fair Market Value; provided that (i) at the consideration for each time of the execution of the definitive agreement relating to such Asset Sale represents fair value and at least 50% of such consideration consists of cash; Sale, no Default shall be continuing, (ii) in at the case time of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, shall be continuing or would result from consummation of such transaction; therefrom, and (iii) the aggregate amount of all such with respect to any Asset Sales made Sale pursuant to this subpart during clause (j) for a purchase price in excess of $10,000,000, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash and/or Cash Equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 7.02); provided, that for purposes of this clause (iii), any fiscal year Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess of $3,000,000 (with the Fair Market Value of each item of Designated Non-Cash Consideration being determined at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash; provided, further, that no such Asset Sale or series of related Asset Sales shall constitute the sale, transfer or disposition of all or substantially all of the assets of the Parent Borrower shall not exceed $1,000,000 in and its Restricted Subsidiaries;
(k) any fiscal year and $3,000,000 Asset Sale involving property (i) no longer used or useful in the aggregate for all such Asset Sales over conduct of the life business of this Agreementthe Parent Borrower and the Restricted Subsidiaries, (ii) that is obsolete or worn out or (iii) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not used or useful to the core or principal business of the Parent Borrower and the Restricted Subsidiaries; and
(el) the Borrower or any Restricted Subsidiary may make any Acquisition that is a Permitted Acquisition, ; provided that the aggregate amount of Consideration paid by any Credit Party in respect of all such Permitted Acquisitions of any Restricted Subsidiary that does not become a Credit Party (or assets of which do not become part of the conditions contained in the definition of the term Permitted Acquisition are satisfiedCollateral) shall not exceed $25,000,00050,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger merger, consolidation or consolidationamalgamation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, that each of the following shall be permitted:
(a) (i) the merger, consolidation or amalgamation of (iA) any Restricted Subsidiary of the Borrower Parent Guarantor with or into the Parent Guarantor or the Borrower; provided, provided that the Parent Guarantor or the Borrower is the surviving or continuing or resulting corporation; (iiB) any Restricted Subsidiary of the Borrower Parent Guarantor with or into any Subsidiary Guarantor; provided, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iiiC) any Foreign Subsidiary of the Borrower Parent Guarantor that is not a Credit Party with or into any other Foreign Subsidiary of the BorrowerParent Guarantor that is not a Credit Party or (ii) any Holding Company Merger; provided, that substantially concurrently with the consummation of such Holding Company Merger, (x) New Parent shall provide a guarantee of the Obligations in a form reasonably satisfactory to the Administrative Agent, (y) New Parent shall deliver to the Administrative Agent the documents required of a U.S. Subsidiary or Credit Party under Sections 6.09(a) and 6.10 (including in respect of the Equity Interests of the Parent Guarantor held by the New Parent. but excluding, for the avoidance of doubt, any Security Document in regard of the Equity Interests of New Parent), in each case, in a form reasonably satisfactory to the Administrative Agent and (z) the Administrative Agent (acting at the direction of the Required Lenders), New Parent and Parent Guarantor shall negotiate in good faith to execute amendments to the Loan Documents such that the representations and warranties, covenants, events of default and other similar provisions herein and therein that currently apply to the Parent Guarantor also apply to New Parent; provided, further, that this Section 7.02(a) shall supersede any provisions in Section 11.12 to the contrary;
(b) so long as no Specified Event of Default has occurred and is continuing, or would result therefrom, any Asset Sale by (i) the Borrower any U.S. Credit Party to any other U.S. Credit Party, (ii) any Restricted #4842-1976-9300 #4848-6974-4858 Subsidiary of the Borrower that is not a Credit Party to any Credit Party; or (iii) any Foreign Non-U.S. Subsidiary of the Borrower Parent Guarantor that is a Credit Party to any other Foreign Credit Party, or (iv) any Restricted Subsidiary of that is not a Credit Party to any other Restricted Subsidiary that is not a Credit Party; provided, that to the Borrowerextent any such Asset Sale constitutes an Investment, it shall be permitted under Section 7.05 (other than Section 7.05(q));
(c) any transaction permitted pursuant to Section 7.057.05 or 7.06;
(d) in addition to any Asset Sale permitted above, the Borrower Parent Guarantor or any of its Restricted Subsidiaries may consummate any Asset Sale, provided provided, that (i) the consideration for each such Asset Sale represents fair market value and at least 5075% of such consideration consists of cash; , (ii) in the case of any Asset Sale involving consideration in excess of $250,00020,000,000, at least five three (3) Business Days prior to the date of completion of such Asset Sale, the Borrower Parent Guarantor shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; transaction and (iii) the aggregate amount Parent Guarantor or such Restricted Subsidiary uses the proceeds of all such Asset Sales made pursuant Sale to this subpart during any fiscal year of prepay the Borrower shall not exceed $1,000,000 in any fiscal year Loans as and $3,000,000 in to the aggregate for all such Asset Sales over the life of this Agreement; andextent required by Section 2.13(c)(v);
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied.[reserved];
Appears in 1 contract
Samples: Priming Facility Credit Agreement (GTT Communications, Inc.)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Borrower will not, nor and will any Credit Party not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree in writing to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, therefrom each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) the merger of any Domestic Subsidiary that is not required to be a Subsidiary Guarantor hereunder into another Domestic Subsidiary that is not required to be a Subsidiary Guarantor;
(c) the voluntary dissolution or liquidation of any Subsidiary that is an inactive or dormant Non-Material Subsidiary;
(d) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party; (iii) any Domestic Subsidiary that is not required to be a Subsidiary Guarantor to another Domestic Subsidiary that is not required to be a Subsidiary Guarantor, or (iiiiv) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(ce) the Borrower or any transaction permitted pursuant to Section 7.05;Subsidiary may make any Permitted Acquisition, provided that all of the conditions contained in such definition are satisfied; and
(df) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 5090% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,0005,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by of an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from the consummation of such transaction; and (iii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied40,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Borrower will not, nor and will any Credit Party not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) any Asset Sale by (i) the Borrower to any other Domestic Credit Party, (ii) any Subsidiary of the Borrower to any Domestic Credit Party; or (iii) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(c) the Borrower or any transaction permitted pursuant to Section 7.05;Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied; and
(d) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 5090% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,000, 15,000,000 at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, and the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year since the Closing Date shall not exceed 25% of Consolidated Total Assets, based on the financial statements of the Borrower for the most recently completed fiscal year;
(e) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may make Asset Sales in connection with any Sale and Lease-Back Transaction that is consummated substantially contemporaneously with any such Asset Sale by the Person acquiring such assets, provided that the aggregate amount of all Asset Sales made in connection with any Sale and Lease-Back Transactions made pursuant to this subpart since the Closing Date shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement15,000,000; and
(ef) any Subsidiary that is not a Credit Party may wind up, liquidate or dissolve its affairs so long as (i) the Borrower total assets of such Subsidiary are less than $1,000,000, and (ii) no Default or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all Event of the conditions contained in the definition of the term Permitted Acquisition are satisfiedDefault shall exist or begin to exist immediately thereafter.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Borrower will not, nor will any Credit Party permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree in writing to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, therefrom each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) the merger of any Domestic Subsidiary that is not required to be a Subsidiary Guarantor hereunder into another Domestic Subsidiary that is not required to be a Subsidiary Guarantor;
(c) the voluntary dissolution or liquidation of any Subsidiary that is an inactive or dormant Non-Material Subsidiary;
(d) any Asset Sale by (i) the Borrower to any other Credit PartySubsidiary Guarantor, (ii) any Subsidiary of the Borrower to any Credit Party; (iii) any Domestic Subsidiary that is not required to be a Subsidiary Guarantor to another Domestic Subsidiary that is not required to be a Subsidiary Guarantor, or (iiiiv) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(ce) the Borrower or any transaction permitted pursuant to Section 7.05Subsidiary may make any Permitted Acquisition, provided that all of the conditions contained in such definition are satisfied;
(df) any Permitted Sale Leaseback Asset Sale;
(g) the transfer or sale of receivables and related assets in connection with any Permitted Securitization Transaction;
(h) the transfer or sale of any assets acquired by the Borrower or any of its Subsidiaries in connection with the Target Acquisition; and
(i) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 50% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,00050,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by of an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from the consummation of such transaction; and (iiiii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied100,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, or (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower that is not a Subsidiary Guarantor with or into any other Foreign wholly-owned Subsidiary of the BorrowerBorrower that is not a Subsidiary Guarantor;
(b) any Asset Sale by (i) the Borrower or any Subsidiary to any other Credit Party, Party or (ii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor to any Credit Party; or (iii) any Foreign other wholly-owned Subsidiary of the Borrower to any other Foreign that is not a Subsidiary of the BorrowerGuarantor;
(c) any transaction permitted pursuant to Section 7.05;
(d) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 5090% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,0001,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transactiontransaction (including on a pro forma basis); and (iii) the aggregate amount of consideration for all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 2,500,000 in any fiscal year and $3,000,000 5,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; andAgreement excluding, in each case under this clause (iii), consideration for any Asset Sale constituting the disposition of CAH;
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that (i) all of the conditions contained in the definition of the term “Permitted Acquisition Acquisition” are satisfied, and (ii) any Indebtedness assumed in connection therewith is permitted by Section 7.04(h) hereof; and
(f) any Immaterial Subsidiary (i) may voluntarily liquidate or dissolve, or (ii) may merge with or into the Borrower or another Credit Party provided that the Borrower or such Credit Party, as applicable, shall be the continuing or surviving Person.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Parent Borrower will not, nor will any Credit Party the Parent Borrower permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger consummate a merger, consolidation or consolidationamalgamation, (iii) make any Acquisition or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Parent Borrower with or into the any Borrower, provided the such Borrower is the surviving or surviving, continuing or resulting corporation; Person, (ii) any Subsidiary of the Parent Borrower with or into any Subsidiary Guarantor, provided that the surviving or surviving, continuing or resulting corporation is Person is, or immediately after giving effect thereto, becomes, a Subsidiary Guarantor; or , (iii) any Foreign Subsidiary of the Parent Borrower with or that is not a Credit Party into any other Foreign Subsidiary of the BorrowerParent Borrower that is not a Credit Party, (iv) any Subsidiary Guarantor into any other Credit Party and (v) subject to the foregoing provisions of this Section 7.01(a), any Subsidiary of the Parent Borrower into any other Subsidiary of the Parent Borrower to the extent permitted under Section 7.04;
(b) any Asset Sale by or other disposition of property or assets (i) to the Parent Borrower to any or other Credit Party, (ii) from any Subsidiary of the Parent Borrower that is not a Credit Party to any other Subsidiary of the Parent Borrower that is not a Credit Party; or Party and (iii) from the Parent Borrower or any Foreign Subsidiary of the Parent Borrower to any other Foreign Subsidiary of the BorrowerParent Borrower to the extent permitted under Section 7.04;
(c) any transaction permitted pursuant to (i) Section 7.04 or (ii) Section 7.05;
(d) any Restricted Subsidiary of the Parent Borrower may liquidate, amalgamate or dissolve if (x) the Parent Borrower determines in good faith that such liquidation, amalgamation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor or Additional Borrower, any assets or business not otherwise disposed of or transferred in accordance with this Section 7.01, Section 7.04 or Section 7.05, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Parent Borrower, another Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(e) the Transactions may be consummated;
(f) any Restricted Subsidiary of the Parent Borrower may consummate a merger, dissolution, liquidation, amalgamation, consolidation or disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.01, an Investment otherwise permitted under Section 7.04 or a Restricted Payment otherwise permitted under Section 7.05;
(g) the Parent Borrower and its Restricted Subsidiaries may sell, compromise or transfer accounts receivable, in each case, in the ordinary course of business and other than in connection with a financing transaction;
(h) any disposition of Capital Stock in, or Indebtedness or other securities of, (i) a Restricted Subsidiary that is not a Material Subsidiary or (ii) an Unrestricted Subsidiary;
(i) the Parent Borrower or any Restricted Subsidiary may consummate any Sale and Lease-Back Transaction (to the extent constituting an Asset Sale);
(j) in addition to any Asset Sale permitted aboveby this Section 7.01, the Parent Borrower or any of its Restricted Subsidiaries may consummate any Asset SaleSale (other than a Sale and Lease-Back Transaction) for Fair Market Value, provided that (i) at the consideration for each time of the execution of the definitive agreement relating to such Asset Sale represents fair value and at least 50% of such consideration consists of cash; Sale, no Default shall be continuing, (ii) in at the case time of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, shall be continuing or would result from consummation of such transaction; therefrom, and (iii) the aggregate amount of all such with respect to any Asset Sales made Sale pursuant to this subpart during clause (j) for a purchase price in excess of $3,000,000, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 7.02); provided, that for purposes of this clause (iii), any fiscal year Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess of $3,000,000 (with the Fair Market Value of each item of Designated Non-Cash Consideration being determined at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash; provided further that no such Asset Sale or series of related Asset Sales shall constitute the sale, transfer or disposition of all or substantially all of the assets of the Parent Borrower shall not exceed $1,000,000 in and its Restricted Subsidiaries;
(k) any fiscal year and $3,000,000 Asset Sale involving property (i) no longer used or useful in the aggregate for all such Asset Sales over conduct of the life business of this Agreementthe Parent Borrower and the Restricted Subsidiaries, (ii) that is obsolete or worn out or (iii) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not used or useful to the core or principal business of the Parent Borrower and the Restricted Subsidiaries; and
(el) the Borrower or any Restricted Subsidiary may make any Acquisition that is a Permitted Acquisition, ; provided that the aggregate amount of Consideration paid in respect of all such Permitted Acquisitions of any Restricted Subsidiary that does not become a Credit Party (or assets of which do not become part of the conditions contained in the definition of the term Permitted Acquisition are satisfiedCollateral) shall not exceed $15,000,000.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party Neither Holdings nor the Borrower will, nor will any Credit Party either of them permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree in writing to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) the merger, consolidation or amalgamation of the Borrower with or into Holdings, provided that Holdings is the surviving entity (it being agreed that in the event such a transaction occurs (i) Holdings shall become the Borrower for all purposes under this Agreement, (ii) Section 7.13 of the Credit Agreement shall no longer be effective and (iii) each other provision of this Agreement applicable to either Holdings or the Borrower shall then be applicable to Holdings).
(c) the merger of any Domestic Subsidiary that is not required to be a Subsidiary Guarantor hereunder into another Domestic Subsidiary that is not required to be a Subsidiary Guarantor;
(d) the voluntary dissolution or liquidation of any Subsidiary that is an inactive or dormant Non-Material Subsidiary;
(e) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party; , or (iii) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(cf) any transaction permitted pursuant to Section 7.05[Reserved];
(dg) the Borrower or any Subsidiary may make any Permitted Acquisition, provided that all of the conditions contained in such definition are satisfied; and
(h) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that that: (i) in the case of any Asset Sale involving consideration for each of $5,000,000 or more but less than $10,000,000, the Borrower shall provide to the Administrative Agent, within 30 days of the consummation of such Asset Sale, a description of such Asset Sale, notice of the date such Asset Sale represents fair value was consummated, a description of the sale price or other consideration for such Asset Sale and at least 50% of such consideration consists of cashother information as the Administrative Agent shall reasonably request; (ii) in the case of any Asset Sale involving consideration in excess of $250,00010,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by of an Authorized OfficerOfficer of the Borrower, which certificate shall contain (A) a description of the proposed transactionAsset Sale, the date such transaction Asset Sale is scheduled to be consummated, the estimated sale price or other consideration for such transactionAsset Sale, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from the consummation of such transactionAsset Sale; (iii) in all cases, if such Asset Sale involves consideration in excess of $5,000,000, the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; and (iiiiv) in all cases, the aggregate amount of all such Asset Sales made pursuant to this subpart Section 7.2(h) during any fiscal year of the Borrower Holdings shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied25,000,000.
Appears in 1 contract
Samples: Credit Agreement (RBC Bearings INC)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the Transactions contemplated by the Transaction Documents;
(b) the merger, consolidation or amalgamation of (i) a Borrower (other than the Parent) into another Borrower; (ii) any Subsidiary of the a Borrower with or into the a Borrower, provided the such Borrower is the surviving or continuing or resulting corporation; (iiiii) any Subsidiary of the a Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iiiiv) any Foreign Subsidiary of the a Borrower with or into any other Foreign Subsidiary of the a Borrower;
(bc) any Asset Sale by (i) the a Borrower to any other Domestic Credit Party, (ii) any Subsidiary of the a Borrower to any Domestic Credit Party; or (iii) any Foreign Subsidiary of the a Borrower to any other Foreign Subsidiary of the a Borrower;
(cd) any transaction permitted pursuant to Section 7.05;
(de) any Asset Sale to the extent that such property is exchanged substantially contemporaneously for credit against the purchase price of similar replacement property;
(f) in addition to any Asset Sale permitted above, the Borrower Parent or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 5090% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,0001,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower Borrowers shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower Borrowers shall not exceed $1,000,000 5,000,000 in any fiscal year and $3,000,000 20,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and
(eg) the Borrower Parent or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided provided, that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Parent Borrower will not, nor will any Credit Party the Parent Borrower permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger consummate a merger, consolidation or consolidationamalgamation, (iii) make any Acquisition or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Parent Borrower with or into the any Borrower, provided the (A) such Borrower is the surviving or surviving, continuing or resulting corporationPerson or (B) if the Person formed by, surviving or resulting from any such merger, consolidation or amalgamation (any such Person, the “Successor Borrower”) is not such Borrower (the “Previous Borrower”),
(1) the Successor Borrower shall expressly assume all the obligations of the Previous Borrower under this Agreement and the other Loan Documents to which the Previous Borrower was a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (2) each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Guaranty confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under this Agreement at least to the same extent as it applied the those of the Previous Borrower and (3) each Credit Party, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Security Document confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement at least to the same extent as it applied the those of the Previous Borrower; provided further that if the foregoing requirements set forth in clauses (1) through (3) above are satisfied, the Successor Borrower will succeed to, and be substituted for, the Previous Borrower under this Agreement, (ii) any Subsidiary of the Parent Borrower with or into any Subsidiary Guarantor, provided that the surviving or surviving, continuing or resulting corporation is Person is, or immediately after giving effect thereto, becomes, a Subsidiary Guarantor; or , (iii) any Foreign Subsidiary of the Parent Borrower with or that is not a Credit Party into any other Foreign Subsidiary of the BorrowerParent Borrower that is not a Credit Party, (iv) any Subsidiary Guarantor into any other Borrower and (v) any Subsidiary of the Parent Borrower into any other Subsidiary of the Parent Borrower to the extent permitted under Section 7.04;
(b) any Asset Sale by or other disposition of property or assets (i) to the Parent Borrower to any or other Credit Party, (ii) from any Subsidiary of the Parent Borrower that is not a Credit Party to any other Subsidiary of the Parent Borrower that is not a Credit Party; or Party and (iii) from the Parent Borrower or any Foreign Subsidiary of the Parent Borrower to any other Foreign Subsidiary of the BorrowerParent Borrower to the extent permitted under Section 7.04;
(c) any transaction permitted pursuant to Section 7.03, Section 7.04 or Section 7.05;
(d) any Restricted Subsidiary of the Parent Borrower may liquidate, amalgamate or dissolve if (x) the Parent Borrower determines in good faith that such liquidation, amalgamation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, any assets or business not otherwise disposed of or transferred in accordance with this Section 7.01, Section 7.04 or Section 7.05, or, in the case of any such business, discontinued shall be transferred to, or otherwise owned or conducted by, the Parent Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution except to the extent otherwise permitted by Section 7.03, Section 7.04 or Section 7.05;
(e) the Transactions may be consummated;
(f) any Restricted Subsidiary of the Parent Borrower may consummate a merger, dissolution, liquidation, amalgamation, consolidation or disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.01 or an Investment otherwise permitted under Section 7.04 or a Restricted Payment otherwise permitted under Section 7.05;
(g) any disposition of Capital Stock in, or Indebtedness or other securities of, (i) a Restricted Subsidiary that is not a Material Subsidiary or (ii) an Unrestricted Subsidiary;
(h) the Parent Borrower or any Restricted Subsidiary may consummate any Sale and Lease-Back Transaction;
(i) in addition to any Asset Sale permitted aboveby this Section 7.01, the Parent Borrower or any of its Restricted Subsidiaries may consummate any Asset SaleSale for Fair Market Value, provided that (iA) at the consideration for each time of the execution of the definitive agreement relating to such Asset Sale represents fair value and Sale, no Event of Default shall exist, (B) at least 50% the time of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower no Specified Event of Default shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transactionexist, and (BC) if after giving effect to such Asset Sale the Parent Borrower’s First Lien Leverage Ratio, calculated on a certification that no Default Pro Forma Basis, is greater than 4.00 to 1.00 or Event the Total Leverage Ratio, calculated on a Pro Forma Basis, is greater than 5.50 to 1.00, at least 75% of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all such consideration received by the Parent Borrower or any Restricted Subsidiary from Asset Sales made consummated pursuant to this subpart during any clause (j) in the current fiscal year of the Parent Borrower shall be in the form of cash or Cash Equivalents; provided, that for purposes of this clause (C), Designated Non-Cash Consideration received in respect of such Asset Sale, taken together with all other Designed Non-Cash Consideration received in respect of Assets Sales pursuant to this clause (i) that do not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such at any time outstanding an amount equal to the greater of (x) $105 million and (y) 5.0% of Consolidated Total Assets of the Parent Borrower shall be deemed to be cash (with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Parent Borrower at the time received and without giving effect to subsequent changes in value);
(j) any Asset Sales over Sale of non-core assets or property, including assets or property (i) no longer used or useful in the life conduct of this Agreementthe business of the Parent Borrower and the Restricted Subsidiaries or (ii) acquired pursuant to or in order to effectuate a Permitted Acquisition or Investment which assets are not used or useful to the core or principal business of the Parent Borrower and the Restricted Subsidiaries; and
(ek) the Parent Borrower or any Restricted Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied.
Appears in 1 contract
Samples: Credit Agreement (Patheon Holdings Cooperatief U.A.)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, or (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower that is not a Subsidiary Guarantor with or into any other Foreign wholly-owned Subsidiary of the BorrowerBorrower that is not a Subsidiary Guarantor;
(b) any Asset Sale by (i) the Borrower or any Subsidiary to any other Credit Party, Party or (ii) any Subsidiary of the Borrower that is not a Subsidiary Guarantor to any Credit Party; or (iii) any Foreign other wholly-owned Subsidiary of the Borrower to any other Foreign that is not a Subsidiary of the BorrowerGuarantor;
(c) any transaction permitted pursuant to Section Section 7.05;
(d) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 5090% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,0002,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transactiontransaction (including on a Pro Forma Basis); and (iii) the aggregate amount of consideration for all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 10,000,000 in any fiscal year and $3,000,000 20,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; andAgreement excluding, in each case under this clause (iii), consideration for any Asset Sale constituting the disposition of CAH;
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that (i) all of the conditions contained in the definition of the term “Permitted Acquisition Acquisition” are satisfied, and (ii) any Indebtedness assumed in connection therewith is permitted by Section 7.04(h) hereof; and
(f) any Immaterial Subsidiary (i) may voluntarily liquidate or dissolve, or (ii) may merge with or into the Borrower or another Credit Party provided that the Borrower or such Credit Party, as applicable, shall be the continuing or surviving Person.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Parent Borrower will not, nor will any Credit Party the Parent Borrower permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger consummate a merger, consolidation or consolidationamalgamation, (iii) make any Acquisition or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Parent Borrower with or into the any Borrower, ; provided the such Borrower is the surviving or surviving, continuing or resulting corporation; Person, (ii) any Subsidiary of the Parent Borrower with or into any Subsidiary Guarantor, ,; provided that the surviving or surviving, continuing or resulting corporation is Person is, or immediately after giving effect thereto, becomes, a Subsidiary Guarantor; or , (iii) any Foreign Subsidiary of the Parent Borrower with or that is not a Credit Party into any other Foreign Subsidiary of the BorrowerParent Borrower that is not a Credit Party, (iv) any Subsidiary Guarantor into any other Credit Party and (v) subject to the foregoing provisions of this Section 7.01(a), any Subsidiary of the Parent Borrower into any other Subsidiary of the Parent Borrower to the extent permitted under Section 7.04;
(b) any Asset Sale by or other disposition of property or assets (i) to the Parent Borrower to any or other Credit Party, (ii) from any Subsidiary of the Parent Borrower that is not a Credit Party to any other Subsidiary of the Parent Borrower that is not a Credit Party; or Party and (iii) from the Parent Borrower or any Foreign Subsidiary of the Parent Borrower to any other Foreign Subsidiary of the BorrowerParent Borrower to the extent permitted under Section 7.04;
(c) any transaction permitted pursuant to (i) Section 7.04 or (ii) Section 7.05;
(d) any Restricted Subsidiary of the Parent Borrower may liquidate, amalgamate or dissolve if (x) the Parent Borrower determines in good faith that such liquidation, amalgamation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor or Additional Borrower, any assets or business not otherwise disposed of or transferred in accordance with this Section 7.01 or7.01, Section 7.04 (other than Section 7.04(k)(i)) or Section 7.05, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Parent Borrower, another Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(e) the Transactions may be consummated;
(f) any Restricted Subsidiary of the Parent Borrower may consummate a merger, dissolution, liquidation, amalgamation, consolidation or disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.01, an Investment otherwise permitted under Section 7.04 (other than Section 7.04(k)(i)) or a Restricted Payment otherwise permitted under Section 7.05;
(g) the Parent Borrower and its Restricted Subsidiaries may sell, compromise or transfer accounts receivable, in each case, in the ordinary course of business and other than in connection with a financing transaction;
(h) any disposition of Capital Stock in, or Indebtedness or other securities of, (i) a Restricted Subsidiary that is not a Material Subsidiary or (ii) an Unrestricted Subsidiary;
(i) the Parent Borrower or any Restricted Subsidiary may consummate any Sale and Lease-Back Transaction (to the extent constituting an Asset Sale);
(j) in addition to any Asset Sale permitted aboveby this Section 7.01, the Parent Borrower or any of its Restricted Subsidiaries may consummate any Asset Sale, Sale (other than a Sale and Lease-Back Transaction) for Fair Market Value; provided that (i) at the consideration for each time of the execution of the definitive agreement relating to such Asset Sale represents fair value and at least 50% of such consideration consists of cash; Sale, no Default shall be continuing, (ii) in at the case time of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, shall be continuing or would result from consummation of such transaction; therefrom, and (iii) the aggregate amount of all such with respect to any Asset Sales made Sale pursuant to this subpart during clause (j) for a purchase price in excess of $3,000,000,10,000,000, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash and/or Cash Equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 7.02); provided, that for purposes of this clause (iii), any fiscal year Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess of $3,000,000 (with the Fair Market Value of each item of Designated Non-Cash Consideration being determined at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash; provided, further, that no such Asset Sale or series of related Asset Sales shall constitute the sale, transfer or disposition of all or substantially all of the assets of the Parent Borrower shall not exceed $1,000,000 in and its Restricted Subsidiaries;
(k) any fiscal year and $3,000,000 Asset Sale involving property (i) no longer used or useful in the aggregate for all such Asset Sales over conduct of the life business of this Agreementthe Parent Borrower and the Restricted Subsidiaries, (ii) that is obsolete or worn out or (iii) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not used or useful to the core or principal business of the Parent Borrower and the Restricted Subsidiaries; and
(el) the Borrower or any Restricted Subsidiary may make any Acquisition that is a Permitted Acquisition, ; provided that the aggregate amount of Consideration paid by any Credit Party in respect of all such Permitted Acquisitions of any Restricted Subsidiary that does not become a Credit Party (or assets of which do not become part of the conditions contained in the definition of the term Permitted Acquisition are satisfiedCollateral) shall not exceed $17,500,000.25,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Borrower will not, nor and will any Credit Party not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree in writing to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, therefrom each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) the merger of any Domestic Subsidiary that is not required to be a Subsidiary Guarantor hereunder into another Domestic Subsidiary that is not required to be a Subsidiary Guarantor;
(c) the voluntary dissolution or liquidation of any Subsidiary that is an inactive or dormant Non-Material Subsidiary;
(d) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party; (iii) any Domestic Subsidiary that is not required to be a Subsidiary Guarantor to another Domestic Subsidiary that is not required to be a Subsidiary Guarantor, or (iiiiv) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(ce) the Borrower or any transaction permitted pursuant to Section 7.05Subsidiary may make any Permitted Acquisition, provided that all of the conditions contained in such definition are satisfied;
(df) any Permitted Sale Leaseback Asset Sale; and
(g) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents at least the fair market value and at least 5075% of such consideration consists of cash, Cash Equivalents or Replacement Assets; (ii) in the case of any Asset Sale involving consideration in excess of $250,00025,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by of an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from the consummation of such transaction; and (iii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied50,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Parent Borrower will not, nor will any Credit Party the Parent Borrower permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidationconsummate a merger, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:consolidation or
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Parent Borrower with or into the any Borrower, ; provided the such Borrower is the surviving or surviving, continuing or resulting corporation; Person, (ii) any Subsidiary of the Parent Borrower with or into any Subsidiary Guarantor, ; provided that the surviving or surviving, continuing or resulting corporation is Person is, or immediately after giving effect thereto, becomes, a Subsidiary Guarantor; or , (iii) any Foreign Subsidiary of the Parent Borrower with or that is not a Credit Party into any other Foreign Subsidiary of the BorrowerParent Borrower that is not a Credit Party, (iv) any Subsidiary Guarantor into any other Credit Party and (v) subject to the foregoing provisions of this Section 7.01(a), any Subsidiary of the Parent Borrower into any other Subsidiary of the Parent Borrower to the extent permitted under Section 7.04;
(b) any Asset Sale by or other disposition of property or assets (i) to the Parent Borrower to any or other Credit Party, (ii) from any Subsidiary of the Parent Borrower that is not a Credit Party to any other Subsidiary of the Parent Borrower that is not a Credit Party; or Party and (iii) from the Parent Borrower or any Foreign Subsidiary of the Parent Borrower to any other Foreign Subsidiary of the BorrowerParent Borrower to the extent permitted under Section 7.04;
(c) any transaction permitted pursuant to (i) Section 7.04 or (ii) Section 7.05;
(d) any Restricted Subsidiary of the Parent Borrower may liquidate, amalgamate or dissolve if (x) the Parent Borrower determines in good faith that such liquidation, amalgamation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor or Additional Borrower, any assets or business not otherwise disposed of or transferred in accordance with this
Section 7.01, Section 7.04 (other than Section 7.04(k)(i)) or Section 7.05, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Parent Borrower, another Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(e) the Transactions may be consummated;
(f) any Restricted Subsidiary of the Parent Borrower may consummate a merger, dissolution, liquidation, amalgamation, consolidation or disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.01, an Investment otherwise permitted under Section 7.04 (other than Section 7.04(k)(i)) or a Restricted Payment otherwise permitted under Section 7.05;
(g) the Parent Borrower and its Restricted Subsidiaries may sell, compromise or transfer accounts receivable, in each case, in the ordinary course of business and other than in connection with a financing transaction;
(h) any disposition of Capital Stock in, or Indebtedness or other securities of, (i) a Restricted Subsidiary that is not a Material Subsidiary or (ii) an Unrestricted Subsidiary;
(i) the Parent Borrower or any Restricted Subsidiary may consummate any Sale and Lease-Back Transaction (to the extent constituting an Asset Sale);
(j) in addition to any Asset Sale permitted aboveby this Section 7.01, the Parent Borrower or any of its Restricted Subsidiaries may consummate any Asset Sale, Sale (other than a Sale and Lease-Back Transaction) for Fair Market Value; provided that (i) at the consideration for each time of the execution of the definitive agreement relating to such Asset Sale represents fair value and at least 50% of such consideration consists of cash; Sale, no Default shall be continuing, (ii) in at the case time of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, shall be continuing or would result from consummation of such transaction; therefrom, and (iii) the aggregate amount of all such with respect to any Asset Sales made Sale pursuant to this subpart during clause (j) for a purchase price in excess of $10,000,000, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash and/or Cash Equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 7.02); provided, that for purposes of this clause (iii), any fiscal year Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (j) that is at that time outstanding, not in excess of $3,000,000 (with the Fair Market Value of each item of Designated Non-Cash Consideration being determined at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash; provided, further, that no such Asset Sale or series of related Asset Sales shall constitute the sale, transfer or disposition of all or substantially all of the assets of the Parent Borrower shall not exceed $1,000,000 in and its Restricted Subsidiaries;
(k) any fiscal year and $3,000,000 Asset Sale involving property (i) no longer used or useful in the aggregate for all such Asset Sales over conduct of the life business of this Agreementthe Parent Borrower and the Restricted Subsidiaries, (ii) that is obsolete or worn out or (iii) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not used or useful to the core or principal business of the Parent Borrower and the Restricted Subsidiaries; and
(el) the Borrower or any Restricted Subsidiary may make any Acquisition that is a Permitted Acquisition, ; provided that the aggregate amount of Consideration paid by any Credit Party in respect of all such Permitted Acquisitions of any Restricted Subsidiary that does not become a Credit Party (or assets of which do not become part of the conditions contained in the definition of the term Permitted Acquisition are satisfiedCollateral) shall not exceed $25,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger merger, consolidation or consolidationamalgamation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, that each of the following shall be permitted:: (a)
(ai) the merger, consolidation or amalgamation of (iA) any Restricted Subsidiary of the any Borrower with or into the such Borrower, ; provided the that such Borrower is the surviving or continuing or resulting corporation; (iiB) any Restricted Subsidiary of the any Borrower with or into any Subsidiary Guarantor, ; provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iiiC) any Foreign Subsidiary of the any Borrower that is not a Credit Party with or into any other Foreign Subsidiary of any Borrower that is not a Credit Party or (ii) any Holding Company Merger; provided that, substantially concurrently -148- with the Borrower;
consummation of such Holding Company Merger, (x) New Parent shall provide a guarantee of the Obligations in a form reasonably satisfactory to the Administrative Agent, (y) New Parent shall deliver to the Administrative Agent the documents required of a U.S. Subsidiary or Credit Party under Sections 6.09(a) and 6.10 (including in respect of the Equity Interests of the U.S. Borrower held by the New Parent. but excluding, for the avoidance of doubt, any Security Document in regard of the Equity Interests of New Parent), in each case, in a form reasonably satisfactory to the Administrative Agent and (z) the Administrative Agent, New Parent and U.S. Borrower shall negotiate in good faith to execute amendments to the Loan Documents such that the representations and warranties, covenants, events of default and other similar provisions herein and therein that currently apply to the U.S. Borrower also apply to New Parent; provided, further, that this Section 7.02(a) shall supersede any provisions in Section 11.12 to the contrary; (b) so long as no Specified Event of Default has occurred and is continuing, or would result therefrom, any Asset Sale by (i) the Borrower any U.S. Credit Party to any other U.S. Credit Party, (ii) any Restricted Subsidiary of the Borrower that is not a Credit Party to any Credit Party; or (iii) any Foreign Non-U.S. Subsidiary of the U.S. Borrower that is an EMEA Credit Party to any other Foreign EMEA Credit Party, or (iv) any Restricted Subsidiary of that is not a Credit Party to any other Restricted Subsidiary that is not a Credit Party; provided that, to the Borrower;
extent any such Asset Sale constitutes an Investment, it shall be permitted under Section 7.05 (other than Section 7.05(q)); (c) any transaction permitted pursuant to Section 7.05;
7.05 or 7.06; (d) in addition to any Asset Sale permitted above, the U.S. Borrower or any of its Restricted Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair market value and at least 5075% of such consideration consists of cash; , (ii) in the case of any Asset Sale involving consideration in excess of $250,00020,000,000, at least five three (3) Business Days prior to the date of completion of such Asset Sale, the U.S. Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; transaction and (iii) the aggregate amount U.S. Borrower or such Restricted Subsidiary uses the proceeds of all such Asset Sales made Sale to prepay the Loans as and to the extent required by Section 2.13(c)(v); (e) so long as no Event of Default has occurred and is continuing, or would result therefrom, the U.S. Borrower or any of its Restricted Subsidiaries may dispose of non-core assets acquired in connection with any Permitted Acquisition consummated after the Closing Date; (f) the sale or other transfer (including by capital contribution) of Receivables Assets pursuant to this subpart during Permitted Receivables Financings; (g) in addition to any fiscal year Asset Sale permitted herein, the U.S. Borrower or any of the Borrower shall its Restricted Subsidiaries may consummate other Asset Sales in an amount not exceed $1,000,000 to exceed, in any fiscal year year, the greater of (x) $100,000,000 and $3,000,000 in (y) an amount equal to 20% of Pro Forma EBITDA for the aggregate for all Testing Period most recently ended, provided, that the U.S. Borrower or such Restricted Subsidiary uses the proceeds of such Asset Sales over Sale to prepay the life of this AgreementLoans as and to the extent required by Section 2.13(c)(v); and
(eh) the U.S. Borrower or any Subsidiary may make any Acquisition that is a Permitted AcquisitionAcquisition or any Investment that is not prohibited by the terms hereof; (i) so long as no Event of Default has occurred and is continuing, provided or would result therefrom, any Restricted Subsidiary other than the EMEA Borrower may dissolve, liquidate or wind up its affairs (x) if the U.S. Borrower determines in good faith that all of the conditions contained such dissolution, liquidation or winding up is in the definition of the term Permitted Acquisition are satisfied.best
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willNone of Holdings, nor will any Credit Party permit the Borrower, or any of its Subsidiaries to, will (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) the Borrower or any Subsidiary of the Borrower may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied;
(c) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party; or (iiiii) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(c) any transaction permitted pursuant to Section 7.05;; and
(d) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration aggregate Consideration for each such Asset Sale, when added together with the aggregate Consideration for all other Asset Sales made after the Closing Date pursuant to this subsection (d) shall not at the time of such Asset Sale represents fair value and at least 50exceed an amount equal to 25% of the aggregate book value of total assets of the Borrower and its Subsidiaries at such consideration consists of cashtime; (ii) no Default or Event of Default shall exist prior to or immediately after giving effect to such Asset Sale; (iii) the Borrower would, after giving effect to such Asset Sale, on a pro forma basis (as determined in accordance with clause (iv) below), be in compliance with the financial covenants contained in Section 7.06; and (iv) in the case of any Asset Sale involving consideration that is (A) in excess of $250,0005,000,000, or, (B) when aggregated with the consideration paid for all Asset Sales from and after the Closing Date, in excess of $10,000,000, at least five Business Days prior to the date consummation of completion of any such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s and the Lenders a certificate executed by of an Authorized Officer, which certificate shall contain (A) a description Officer of the proposed transactionBorrower, demonstrating, in reasonable detail, the date computation of the financial covenants referred to in Section 7.06 on a pro forma basis, such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all pro forma ratios being determined as if such Asset Sales made pursuant to this subpart during any fiscal year Sale had been completed at the beginning of the Borrower shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate most recent Testing Period for all such Asset Sales over the life of this Agreement; and
(e) which financial information for the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfiedavailable.
Appears in 1 contract
Samples: Credit Agreement (American Medical Systems Holdings Inc)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Borrower will not, nor will any Credit Party permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree in writing to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, therefrom each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) the merger of any Domestic Subsidiary that is not required to be a Subsidiary Guarantor hereunder into another Domestic Subsidiary that is not required to be a Subsidiary Guarantor;
(c) the voluntary dissolution or liquidation of any Subsidiary that is an inactive or dormant Non-Material Subsidiary;
(d) any Asset Sale by (i) the Borrower to any other Credit PartySubsidiary Guarantor, (ii) any Subsidiary of the Borrower to any Credit Party; (iii) any Domestic Subsidiary that is not required to be a Subsidiary Guarantor to another Domestic Subsidiary that is not required to be a Subsidiary Guarantor, or (iiiiv) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(ce) the Borrower or any transaction permitted pursuant to Section 7.05Subsidiary may make any Permitted Acquisition, provided that all of the conditions contained in such definition are satisfied;
(df) any Permitted Sale Leaseback Asset Sale;
(g) the transfer or sale of receivables and related assets in connection with any Permitted Securitization Transaction; and
(h) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 50% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,00050,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by of an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from the consummation of such transaction; and (iiiii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied100,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Borrower will not, nor and will any Credit Party not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; or (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign wholly-owned Subsidiary of the Borrower;
(b) the voluntary liquidation of any Subsidiary of the Borrower into the Borrower or into a wholly-owned Subsidiary of the Borrower, provided that contemporaneously with such liquidation or immediately thereafter the Subsidiary so liquidated is wound up or dissolved;
(c) any Asset Sale by (i) any Subsidiary of the Borrower to any other Credit Party, the Borrower; or (ii) any Subsidiary of the Borrower to any Credit Party; or (iii) any Foreign Subsidiary of the Borrower to any other Foreign wholly-owned Subsidiary of the Borrower;
(cd) the Borrower or any transaction permitted pursuant to Section 7.05Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied;
(de) any Asset Sale by the Borrower or any Subsidiary of the Borrower of any or all of the assets of any of the Consumer Group Divisions; and
(f) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and and, with respect to Asset Sales the consideration for which is in excess of $5,000,000, at least 5090% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,0005% of the Consolidated Net Worth of the Borrower as of the most recent Testing Period then ended, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all Asset Sales (determined at the greater of the fair value of the assets sold, as determined by the Board of Directors of the Borrower or the applicable Subsidiary, and the book value of the assets sold at the time of such Asset Sales Sale) made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 in any fiscal year and $3,000,000 in 10% of the aggregate for all such Asset Sales over the life Consolidated Net Worth of this Agreement; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all as of the conditions contained in the definition of the term Permitted Acquisition are satisfiedmost recent Testing Period then ended.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Parent Borrower will not, nor will any Credit Party the Parent Borrower permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger consummate a merger, consolidation or consolidationamalgamation, (iii) make any Acquisition or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Parent Borrower with or into the any Borrower, provided the (A) such Borrower is the surviving or surviving, continuing or resulting corporationPerson or (B) if the Person formed by, surviving or resulting from any such merger, consolidation or amalgamation (any such Person, the “Successor Borrower”) is not such Borrower (the “Previous Borrower”),
(1) the Successor Borrower shall expressly assume all the obligations of the Previous Borrower under this Agreement and the other Loan Documents to which the Previous Borrower was a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (2) each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Guaranty confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under this Agreement at least to the same extent as it applied the those of the Previous Borrower and (3) each Credit Party, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Security Document confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement at least to the same extent as it applied the those of the Previous Borrower; provided further that if the foregoing requirements set forth in clauses (1) through (3) above are satisfied, the Successor Borrower will succeed to, and be substituted for, the Previous Borrower under this Agreement, (ii) any Subsidiary of the Parent Borrower with or into any Subsidiary Guarantor, provided that the surviving or surviving, continuing or resulting corporation is Person is, or immediately after giving effect thereto, becomes, a Subsidiary Guarantor; or , (iii) any Foreign Subsidiary of the Parent Borrower with or that is not a Credit Party into any other Foreign Subsidiary the Parent Borrower that is not a Credit Party, (iv) any Subsidiary Guarantor into any other Borrower and (v) any Subsidiary of the BorrowerParent Borrower into any other Subsidiary of the Parent Borrower to the extent permitted under Section 7.04;
(b) any Asset Sale by or other disposition of property or assets (i) to the Parent Borrower to any or other Credit Party, (ii) from any Subsidiary of the Parent Borrower that is not a Credit Party to any other Subsidiary of the Parent Borrower that is not a Credit Party; or Party and (iii) from the Parent Borrower or any Foreign Subsidiary of the Parent Borrower to any other Foreign Subsidiary of the BorrowerParent Borrower to the extent permitted under Section 7.04;
(c) any transaction permitted pursuant to Section 7.04 or Section 7.05;
(d) any Restricted Subsidiary of the Parent Borrower may liquidate, amalgamate or dissolve if (x) the Parent Borrower determines in good faith that such liquidation, amalgamation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Subsidiary Guarantor, any assets or business not otherwise disposed of or transferred in accordance with this Section 7.01, Section 7.04 or Section 7.05, or, in the case of any such business, discontinued shall be transferred to, or otherwise owned or conducted by, the Parent Borrower or another Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(e) the Transactions may be consummated;
(f) any Restricted Subsidiary of the Parent Borrower may consummate a merger, dissolution, liquidation, amalgamation, consolidation or disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.01 or an Investment otherwise permitted under Section 7.04;
(g) the Parent Borrower and its Restricted Subsidiaries may sell or transfer accounts receivable, so long as the Net Cash Proceeds of any Asset Sale pursuant to this clause (g) are offered to prepay the Term Loans pursuant to Section 2.15(c)(v) (without reinvestment);
(h) any disposition of Capital Stock in, or Indebtedness or other securities of, (i) a Restricted Subsidiary that is not a Material Subsidiary or (ii) an Unrestricted Subsidiary;
(i) the Parent Borrower or any Restricted Subsidiary may consummate any Sale and Lease-Back Transaction (to the extent constituting an Asset Sale) so long as the Net Cash Proceeds from one or more Sale and Lease-Back Transactions of property or properties having a Fair Market Value in excess of $10.0 million in the aggregate shall be used to prepay Loans pursuant to Section 2.15(c)(v) (any Sale and Lease-Back Transaction of property or properties having a Fair Market Value equal to or less than $10.0 million in the aggregate is herein referred to as a “Permitted Sale and Lease-Back Transaction”);
(j) in addition to any Asset Sale permitted above, the Parent Borrower or any of its Restricted Subsidiaries may consummate any Asset SaleSale (other than a Sale and Lease-Back Transaction) for Fair Market Value, provided that (i) at the consideration for each time of the execution of the definitive agreement relating to such Asset Sale represents fair value and at least 50% of such consideration consists of cash; Sale, no Default shall be continuing, (ii) in at the case time of any Asset Sale involving consideration in excess of $250,000, at least five Business Days prior to the date of completion consummation of such Asset Sale, the Borrower no Specified Event of Default shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transactioncontinuing, and (Bii) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; and (iii) the aggregate amount of all such with respect to any Asset Sales made Sale pursuant to this subpart during clause (j) for a purchase price in excess of $10.0 million, the Parent Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, that for purposes of this clause (ii), any fiscal year Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate fair market value not in excess of $10.0 million shall be deemed to be cash (with the fair market value of each item of Designated Non-Cash Consideration being determined in good faith by the Parent Borrower at the time received and without giving effect to subsequent changes in value);
(k) any Asset Sale (other than a Sale and Lease-Back Transaction) involving property (i) no longer used or useful in the conduct of the business of the Parent Borrower shall and the Restricted Subsidiaries or (ii) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not exceed $1,000,000 in any fiscal year used or useful to the core or principal business of the Parent Borrower and $3,000,000 in the aggregate for all such Asset Sales over the life of this AgreementRestricted Subsidiaries; and
(el) the Parent Borrower or any Restricted Subsidiary may make any Acquisition that is a Permitted Acquisition, ; provided that the aggregate amount of Consideration paid in respect of all such Permitted Acquisitions of any Restricted Subsidiary that does not become a Credit Party shall not exceed an amount equal to the greater of (x) $60.0 million and (y) 6.0% of Consolidated Total Assets of the conditions contained in the definition Parent Borrower (measured as of the term Permitted Acquisition are satisfieddate such Investment is made (and after giving Pro Forma Effect thereto)).
Appears in 1 contract
Samples: Credit Agreement (Patheon Inc)
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party willThe Borrower will not, nor and will any Credit Party not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree in writing to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, therefrom each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Borrower with or into the Borrower, provided the Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Borrower with or into any other Foreign Subsidiary of the Borrower;
(b) the merger of any Domestic Subsidiary that is not required to be a Subsidiary Guarantor hereunder into another Domestic Subsidiary that is not required to be a Subsidiary Guarantor;
(c) the voluntary dissolution or liquidation of any Subsidiary that is an inactive or dormant Non-Material Subsidiary;
(d) any Asset Sale by (i) the Borrower to any other Credit Party, (ii) any Subsidiary of the Borrower to any Credit Party; (iii) any Domestic Subsidiary that is not required to be a Subsidiary Guarantor to another Domestic Subsidiary that is not required to be a Subsidiary Guarantor, or (iiiiv) any Foreign Subsidiary of the Borrower to any other Foreign Subsidiary of the Borrower;
(ce) any transaction permitted pursuant to Section 7.05the Borrower and the Merger Sub may make the Target Acquisition on the Closing Date in accordance with the terms and conditions of this Agreement and the Target Acquisition Documents;
(df) the Borrower or any Subsidiary may make any Permitted Acquisition, provided that all of the conditions contained in such definition are satisfied;
(g) any Acquisitions and Assets Sales occurring in connection with the Post Reorganization Transactions; and
(h) in addition to any Asset Sale permitted above, the Borrower or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 5090% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $250,0005,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by of an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from the consummation of such transaction; and (iii) the aggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $1,000,000 in any fiscal year and $3,000,000 in the aggregate for all such Asset Sales over the life of this Agreement; and
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied40,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. No Credit Party will, nor will any Credit Party permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve its affairs, (ii) enter into any transaction of merger merger, consolidation or consolidationamalgamation, (iii) make or otherwise effect any Acquisition, (iv) sell or otherwise dispose of any of its property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, if no Default or Event of Default shall have occurred and be continuing or would result therefrom, that each of the following shall be permitted:
(a) (i) the merger, consolidation or amalgamation of (iA) any Restricted Subsidiary of the Borrower Parent Guarantor with or into the Parent Guarantor or the Borrower; provided, provided that the Parent Guarantor or the Borrower is the surviving or continuing or resulting corporation; (iiB) any Restricted Subsidiary of the Borrower Parent Guarantor with or into any Subsidiary Guarantor; provided, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iiiC) any Foreign Subsidiary of the Borrower Parent Guarantor that is not a Credit Party with or into any other Foreign Subsidiary of the BorrowerParent Guarantor that is not a Credit Party or (ii) any Holding Company Merger; provided, that substantially concurrently with the consummation of such Holding Company Merger, (x) New Parent shall provide a guarantee of the Obligations in a form reasonably satisfactory to the Administrative Agent, (y) New Parent shall deliver to the Administrative Agent the documents required of a U.S. Subsidiary or Credit Party under Sections 6.09(a) and 6.10 (including in respect of the Equity Interests of the Parent Guarantor held by the New Parent. but excluding, for the avoidance of doubt, any Security Document in regard of the Equity Interests of New #4848-6974-4858 Parent), in each case, in a form reasonably satisfactory to the Administrative Agent and (z) the Administrative Agent (acting at the direction of the Required Lenders), New Parent and Parent Guarantor shall negotiate in good faith to execute amendments to the Loan Documents such that the representations and warranties, covenants, events of default and other similar provisions herein and therein that currently apply to the Parent Guarantor also apply to New Parent; provided, further, that this Section 7.02(a) shall supersede any provisions in Section 11.12 to the contrary;
(b) so long as no Specified Event of Default has occurred and is continuing, or would result therefrom, any Asset Sale by (i) the Borrower any U.S. Credit Party to any other U.S. Credit Party, (ii) any Restricted Subsidiary of the Borrower that is not a Credit Party to any Credit Party; or (iii) any Foreign Non-U.S. Subsidiary of the Borrower Parent Guarantor that is a Credit Party to any other Foreign Credit Party, or (iv) any Restricted Subsidiary of that is not a Credit Party to any other Restricted Subsidiary that is not a Credit Party; provided, that to the Borrowerextent any such Asset Sale constitutes an Investment, it shall be permitted under Section 7.05 (other than Section 7.05(q));
(c) any transaction permitted pursuant to Section 7.057.05 or 7.06;
(d) in addition to any Asset Sale permitted above, the Borrower Parent Guarantor or any of its Restricted Subsidiaries may consummate any Asset Sale, provided provided, that (i) the consideration for each such Asset Sale represents fair market value and at least 5075% of such consideration consists of cash; , (ii) in the case of any Asset Sale (other than the I Squared Infrastructure Sale (as such term is defined in the RSA) if consummated prior to the occurrence of a RSA Termination Event and in accordance with the RSA) involving consideration in excess of $250,00020,000,000, at least five three (3) Business Days prior to the date of completion of such Asset Sale, the Borrower Parent Guarantor shall have delivered to the Administrative Agent an officer’s certificate executed by an Authorized Officer, which certificate shall contain (A) a description of the proposed transaction, the date such transaction is scheduled to be consummated, the estimated sale price or other consideration for such transaction, and (B) a certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; transaction and (iii) the aggregate amount Parent Guarantor or such Restricted Subsidiary uses the proceeds of all such Asset Sales made pursuant Sale to this subpart during any fiscal year of prepay the Borrower shall not exceed $1,000,000 in any fiscal year Loans as and $3,000,000 in to the aggregate for all such Asset Sales over the life of this Agreement; andextent required by Section 2.13(c)(v);
(e) the Borrower or any Subsidiary may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the definition of the term Permitted Acquisition are satisfied.[reserved];
Appears in 1 contract
Samples: Priming Facility Credit Agreement (GTT Communications, Inc.)
