Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company will not, and will not permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) 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 Company (other than the Receivables Subsidiary) with or into the Company, provided the Company is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10; (b) any Asset Sale by (i) the Company to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) to any Domestic Credit Party; (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10; (c) the Company or any Subsidiary (other than the Receivables 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; (d) AGSC, the Company or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility; (e) the Company or any of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;
Appears in 3 contracts
Samples: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company No Credit Party will, nor will not, and will not any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their 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 thatthat (A) the actions or transactions set forth in the below clauses (a), (b), (c), (d) and (i) of this Section 7.02 shall be permitted and (B) the actions or transactions set forth in the below clauses (e), (f), (g), (h), (j), (k) and (l) of this Section 7.02 shall be permitted if no Default or Event of Default shall have occurred and be continuing or would result therefrom each of the following shall be permittedtherefrom:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporationPerson; (ii) any Subsidiary of the Company Borrower (other than the Receivables Subsidiarywhich may be a Subsidiary Guarantor) with or into any other Subsidiary Guarantorof the Borrower, provided that the surviving or continuing or resulting corporation Person is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company Borrower that is not a Subsidiary Guarantor with or into any other Domestic Foreign Subsidiary of the Company Borrower that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Guarantor;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any (other Canadian Credit Partythan Holdings), (ii) any Subsidiary of the Company Borrower to any Credit Party (other than the Receivables Subsidiary) to any Domestic Credit PartyHoldings); or (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary Borrower that is not a Credit Party Subsidiary Guarantor to any Subsidiary; or (v) the Company or any other Foreign Subsidiary of the Company to the Company or any Borrower that is not a Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10Guarantor;
(c) any sales or transfers by the Company Borrower and its Subsidiaries of Inventory or obsolete, worn-out or excess furniture, fixtures, equipment or other property, real or personal, tangible or intangible, in each case in the ordinary course of business of the Borrower and its Subsidiaries;
(d) the actual or constructive total loss of any property or use thereof resulting from an Event of Loss;
(e) any disposition or series of related dispositions by the Borrower and its Subsidiaries that yield gross proceeds of less than $5,000,000;
(f) any transaction permitted pursuant to Section 7.05;
(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 fair market value (as determined in good faith by the Borrower) and at least 75% of such consideration consists of cash or Cash Equivalents; (ii) in the case of any Asset Sale involving consideration in excess of $7,500,000, at least five Business Days prior to the date of completion of such Asset Sale (or such shorter period of time as is agreed to by the Administrative Agent), 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 in reasonable detail, 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 $10,000,000 in any fiscal year and $30,000,000 in the aggregate for all such Asset Sales over the life of this Agreement;
(h) the Borrower or any of its Subsidiary (other than the Receivables 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 (or waived by the Required Lenders in accordance with the definition thereof);
(di) AGSCthe sale, assignment, transfer, disposition or discount by the Company or any Borrower and its Subsidiaries, in each case without recourse, of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) accounts receivable arising in the ordinary course of business, but only in connection with the Permitted Receivables Facilitycompromise or collection thereof;
(ej) sales of equipment by the Borrower and its Subsidiaries for fair market value so long as the proceeds thereof are either reinvested in replacement equipment or used to purchase other equipment used or useful in the business of the Borrower and its Subsidiaries within 180 days after such sale;
(k) any Sale and Lease-Back Transaction permitted by Section 7.15;
(l) the Company sale of equipment and related property, inventory, products, services (which, for the avoidance of doubt, shall include maintenance agreements) or assets (which, for the avoidance of doubt, shall include IP addresses) of the Borrower that was procured and financed pursuant to any Capitalized Lease Obligation, purchase money Indebtedness or Vendor Financing Arrangement permitted by Section 7.04(c) to any Foreign Subsidiary of its Subsidiaries may wind upthe Borrower; provided that (i) the consideration for each such Asset Sale represents fair market value of the applicable equipment and related property, liquidate inventory, products, services or dissolve any Subsidiary that is not a Credit Party or, if assets being sold and 100% of such Subsidiary is a Credit Party, would not consideration consists of cash; and (but for already being a Credit Partyii) at in the time case of any sale involving consideration in excess of $10,000,000, at least five Business Days prior to the date of completion of such winding-upsale (or such shorter period of time as is agreed to by the Administrative Agent), liquidation 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 in reasonable detail, the date such transaction is scheduled to be consummated, the estimated sale price or dissolutionother consideration for such transaction, be required to become and (B) a Credit Party certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction; or
(m) the sale of equipment and related property, inventory, products, services (which, for the avoidance of doubt, shall include maintenance agreements) or assets (which, for the avoidance of doubt, shall include IP addresses) of the Borrower that was procured and financed pursuant to any Capitalized Lease Obligation, purchase money Indebtedness or Vendor Financing Arrangement permitted by Section 6.09;7.04(c) to any Foreign Subsidiary of the Borrower; provided that (i) the consideration for such Asset Sale shall represent fair market value of the applicable equipment and related property, inventory, products, services or assets being sold, (ii) the aggregate amount of non-cash consideration in respect of such sale is permitted under Section 7.05(i)(iv) and (iii) in the case of any sale involving consideration in excess of $10,000,000, at least five Business Days prior to the date of completion of such sale (or such shorter period of time as is agreed to by the Administrative Agent), 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 in reasonable detail, 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.
Appears in 3 contracts
Samples: Credit Agreement (DigitalOcean Holdings, Inc.), Second Amended and Restated Credit Agreement (DigitalOcean Holdings, Inc.), Second Amended and Restated Credit Agreement (DigitalOcean Holdings, Inc.)
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Immaterial Subsidiary into any other Immaterial Subsidiary, provided that if any such Immaterial Subsidiary is a Subsidiary Guarantor, such Subsidiary Guarantor shall be the surviving or continuing or resulting Person; (iii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into any other Subsidiary Guarantor(other than an Immaterial Subsidiary), provided that the surviving or continuing or resulting corporation Person is not a Foreign Subsidiary and is or becomes a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party; (iii) any Domestic Credit Party (other than the Borrower) to any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to Borrower, provided that the aggregate fair market value of all such Asset Sales shall not at any other Subsidiarytime exceed $75,000,000; (iv) any Immaterial Subsidiary that is not a Credit Party Subsidiary Guarantor to any other Immaterial Subsidiary or any Foreign Subsidiary; or (v) the Company or any Foreign Subsidiary of the Company Borrower to the Company or any other Foreign Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(c) the Company Borrower or any Subsidiary (other than the Receivables 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) AGSCthe Borrower or any Subsidiary may consummate any Asset Sale of any Real Property which is not necessary to the conduct of its respective business;
(e) in addition to any Asset Sale permitted above, the Company Borrower or any of its Subsidiaries may sell Receivables Related Assets consummate any Asset Sale, provided that (including by capital contributioni) the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; (ii) in connection with the Permitted Receivables Facility;case of any Asset Sale involving consideration in excess of $25,000,000, 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 transaction; and (iii) the aggregate amount of all Asset Sales made pursuant to this subpart after the Closing Date shall not exceed $100,000,000 at any time; and
(ef) the Company any Immaterial Subsidiary may be dissolved or any of its Subsidiaries may wind wound up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;.
Appears in 2 contracts
Samples: Credit Agreement (Circor International Inc), Credit Agreement (Circor International Inc)
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, or (iv) 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Restricted Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Immaterial Subsidiary of the Company (other than the Receivables Subsidiary) with or into any other Immaterial Subsidiary, provided that if any such Immaterial Subsidiary is a Subsidiary Guarantor, provided that such Subsidiary Guarantor shall be the surviving or continuing or resulting corporation is a Subsidiary GuarantorPerson; (iii) any Foreign Restricted Subsidiary of the Company Borrower with or into any Canadian Credit Partyother Restricted Subsidiary (other than an Immaterial Subsidiary), provided that if any such Canadian Credit Party Restricted Subsidiary is a Subsidiary Guarantor, then the surviving or continuing or resulting corporationPerson is not a Foreign Subsidiary and is or becomes a Subsidiary Guarantor; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), Borrower; or (v) any Domestic Restricted Subsidiary of the Company that is not a Subsidiary Guarantor with may merge or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made amalgamate in order to avoid consummate a Permitted Organizational Restructuring, provided that when any Restricted Subsidiary that is a Credit Party is merging or amalgamating with another Restricted Subsidiary, a Credit Party shall be a continuing or surviving Person, as applicable, or the application resulting entity shall succeed as a matter of Section 6.09 or Section 6.10law to all of the Obligations of such Credit Party;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party, provided that the aggregate fair market value of all Asset Sales from a Foreign Subsidiary to a Domestic Credit Party shall not at any time exceed $100,000,000; (iii) any Domestic Credit Party (other than the Borrower) to any Foreign Subsidiary of the Borrower, provided that the aggregate fair market value of all such Asset Sales shall not at any time exceed $25,000,000; (iv) any Immaterial Subsidiary that is not a Subsidiary Guarantor to any other Immaterial Subsidiary or any Foreign Subsidiary; or (v) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Foreign Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(c) the Company or any Subsidiary (other than the Receivables 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;
(d) AGSC, the Company or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the The Company will not, and will not permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their 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 their 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 Company (other than the Receivables Subsidiary) with or into the Company, provided the Company is the surviving or continuing or resulting corporation; (ii) any Domestic Subsidiary of the Company (other than the Receivables Subsidiary) with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Foreign Credit Party, provided that such Canadian Foreign Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Foreign Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Foreign Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Guarantor;
(b) any Asset Sale by (i) the Company to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) to any Domestic Credit Party; (iii) any Foreign Subsidiary of the Company (other than a Canadian Foreign Credit Party) to any Foreign Credit Party; (iv) any Foreign Subsidiary of the Company (other than a Foreign Credit Party) to any other Subsidiary; Foreign Subsidiary of the Company (iv) any Subsidiary that is not other than a Foreign Credit Party to any SubsidiaryParty); or (v) the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;
(c) the Company or any Subsidiary (other than the Receivables 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;
(d) AGSC, the Company or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may (i) make a Permitted Asset Disposition or (ii) wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be is not required to become a Credit Party pursuant to Section 6.09;; and
(f) in addition to any Asset Sale permitted above, the Company 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 90% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $10,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Company shall have delivered to the Global Agent an officer’s certificate executed on behalf of the Company 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 made pursuant to this subpart during any fiscal year of the Company shall not exceed $50,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company will not, and will not permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) 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 Company (other than the Receivables Subsidiary) with or into the Company, provided the Company is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10;
(b) any Asset Sale by (i) the Company to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) to any Domestic Credit Party; (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;
(c) the Company or any Subsidiary (other than the Receivables 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;
(d) AGSC, the Company or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;
(f) in addition to any Asset Sale permitted above, the Company or any of its Subsidiaries may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair market value and at least 75% of such consideration consists of cash except that any portion of such consideration consisting of the assumption of liabilities, direct or contingent, of the Company or any of its Subsidiaries by the transferee shall be excluded from such calculation; (ii) in the case of any Asset Sale involving consideration in excess of $10,000,000, at least five Business Days (or such shorter period as agreed to by the Global Agent) prior to the date of completion of such Asset Sale, the Company shall have delivered to the Agents an officer’s certificate executed on behalf of the Company 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; (iii) the Net Cash Proceeds of any such Asset Sale shall have been applied to repayment the Obligations to the extent required by Section 2.16(c)(vi) and (iv) the aggregate amount of all Asset Sales made pursuant to this Section 7.02(f) during any fiscal year of the Company shall not exceed $50,000,000;
(g) the Receivables Subsidiary may sell or transfer Account Receivables to any Person (other than Holdings, the Company or any of the Company’s Subsidiaries or Affiliates) in connection with any receivables put option, credit default swap, credit insurance arrangement or other transaction pursuant to which the Receivables Subsidiary xxxxxx credit risk related to account debtors under certain Account Receivables, provided that (i) no obligation of the Receivables Subsidiary in connection with such transaction shall be guaranteed by Holdings or any of its Subsidiaries, and (ii) there shall be no recourse to or obligation of Holdings or any of its Subsidiaries (other than the Receivables Subsidiary) whatsoever in connection with such transaction other than pursuant to customary representations, warranties, covenants and indemnities entered into in connection with such put option, credit default swap, credit insurance arrangement or other transaction;
(h) the sale of Non-Core Assets, provided that (i) the consideration for each such Asset Sale represents fair market value and at least 75% of such consideration consists of cash or Designated Non-Cash Consideration, except (a) that any portion of such consideration consisting of the assumption of liabilities, direct or contingent, of the Company or any of its Subsidiaries by the transferee shall be excluded from such calculation and (b) for the purposes of the foregoing 75% test, all such Designated Non-Cash Consideration received pursuant to this Section 7.02(h) shall not exceed $20,000,000 in the aggregate during the term of this Agreement; (ii) at least five Business Days (or such shorter period as agreed to by the Global Agent) prior to the date of completion of such Asset Sale, the Company shall have delivered to the Agents an officer’s certificate executed on behalf of the Company 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 relevant portion of the Net Cash Proceeds of any such Asset Sale shall have been applied to repay the Obligations as required by Section 2.16(c)(vi), without reinvestment;
(i) Asset Sales with respect to inventory, supplies, materials and equipment in connection with the restructuring and expansion of the Company’s Chinese operations in an aggregate amount not to exceed $5,000,000;
(j) to the extent the following would otherwise be prohibited by this Section 7.02, Investments permitted by Section 7.05, Liens permitted by Section 7.03, and dividends, distributions and Share Repurchases permitted by Section 7.06;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivable financing transaction; and
(l) the sale and leaseback of a facility of the Company for fair market value; provided that (i) such sale and leaseback shall be made for cash consideration and (ii) the Net Cash Proceeds arising therefrom shall not exceed $17,500,000 during the term of this Agreement.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company No Credit Party will, nor will not, and will not any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger merger, amalgamation 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 thatthat (A) the actions or transactions set forth in the below clauses (a), (b), (c), (d) and (i) of this Section 7.02 shall be permitted and (B) the actions or transactions set forth in the below clauses (e), (f), (g), (h), (j), (k) and (l) of this Section 7.02 shall be permitted if no Default or Event of Default shall have occurred and be continuing or would result therefrom each of the following shall be permittedtherefrom:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporationPerson; (ii) any Subsidiary of the Company Borrower (other than the Receivables Subsidiarywhich may be a Subsidiary Guarantor) with or into any other Subsidiary Guarantorof the Borrower, provided that the surviving or continuing or resulting corporation Person is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company Borrower that is not a Subsidiary Guarantor with or into any other Domestic Foreign Subsidiary of the Company Borrower that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Guarantor;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any (other Canadian Credit Partythan Holdings), (ii) any Subsidiary of the Company Borrower to any Credit Party (other than the Receivables Subsidiary) to any Domestic Credit PartyHoldings); or (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary Borrower that is not a Credit Party Subsidiary Guarantor to any Subsidiary; or (v) the Company or any other Foreign Subsidiary of the Company to the Company or any Borrower that is not a Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10Guarantor;
(c) any sales or transfers by the Company Borrower and its Subsidiaries of Inventory or obsolete, worn-out or excess furniture, fixtures, equipment or other property, real or personal, tangible or intangible, in each case in the ordinary course of business of the Borrower and its Subsidiaries;
(d) the actual or constructive total loss of any property or use thereof resulting from an Event of Loss;
(e) any disposition or series of related dispositions by the Borrower and its Subsidiaries that yield gross proceeds of less than $5,000,000;
(f) any transaction permitted pursuant to Section 7.05;
(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 fair market value (as determined in good faith by the Borrower) and at least 75% of such consideration consists of cash or Cash Equivalents; (ii) in the case of any Asset Sale involving consideration in excess of $7,500,000, at least five Business Days prior to the date of completion of such Asset Sale (or such shorter period of time as is agreed to by the Administrative Agent), 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 in reasonable detail, 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 $10,000,000 in any fiscal year and $30,000,000 in the aggregate for all such Asset Sales over the life of this Agreement;
(h) the Borrower or any of its Subsidiary (other than the Receivables 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 (or waived by the Required Lenders in accordance with the definition thereof);
(di) AGSCthe sale, assignment, transfer, disposition or discount by the Company or any Borrower and its Subsidiaries, in each case without recourse, of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) accounts receivable arising in the ordinary course of business, but only in connection with the Permitted Receivables Facilitycompromise or collection thereof;
(ej) sales of equipment by the Borrower and its Subsidiaries for fair market value so long as the proceeds thereof are either reinvested in replacement equipment or used to purchase other equipment used or useful in the business of the Borrower and its Subsidiaries within 180 days after such sale;
(k) any Sale and Lease-Back Transaction permitted by Section 7.15;
(l) the Company sale of equipment and related property, inventory, products, services (which, for the avoidance of doubt, shall include maintenance agreements) or assets (which, for the avoidance of doubt, shall include IP addresses) of the Borrower that was procured and financed pursuant to any of its Subsidiaries may wind upCapitalized Lease Obligation, liquidate purchase money Indebtedness or dissolve Vendor Financing Arrangement permitted by Section 7.04(c) to (A) any other Credit Party or (B) any Subsidiary of the Borrower that is not a Non-Credit Party Party; provided that, solely in the case of subclause (B) hereof, (i) the consideration for each such Asset Sale represents fair market value of the applicable equipment and related property, inventory, products, services or assets being sold and 100% of such consideration consists of cash; and (ii) in the case of any sale involving consideration in excess of $10,000,000, at least five Business Days prior to the date of completion of such sale (or such shorter period of time as is agreed to by the Administrative Agent), 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 in reasonable detail, 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; or
(m) the sale of equipment and related property, if such inventory, products, services (which, for the avoidance of doubt, shall include maintenance agreements) or assets (which, for the avoidance of doubt, shall include IP addresses) of the Borrower that was procured and financed pursuant to any Capitalized Lease Obligation, purchase money Indebtedness or Vendor Financing Arrangement permitted by Section 7.04(c) to any Foreign Subsidiary of the Borrower that is a Non-Credit Party; provided that (i) the consideration for such Asset Sale shall represent fair market value of the applicable equipment and related property, would not inventory, products, services or assets being sold, (but for already being a Credit Partyii) at the time aggregate amount of non-cash consideration in respect of such sale is permitted under Section 7.05(i)(iv) and (iii) in the case of any sale involving consideration in excess of $10,000,000, at least five Business Days prior to the date of completion of such winding-upsale (or such shorter period of time as is agreed to by the Administrative Agent), liquidation 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 in reasonable detail, the date such transaction is scheduled to be consummated, the estimated sale price or dissolutionother consideration for such transaction, be required to become and (B) a Credit Party pursuant to Section 6.09;certification that no Default or Event of Default has occurred and is continuing, or would result from consummation of such transaction.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, (i) in the case of Material Subsidiaries, wind up, liquidate or dissolve their 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) 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 Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party; or (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Foreign Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(c) the Company Borrower or any Subsidiary (other than the Receivables 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;
(d) AGSCthe Acquisition of Doble on the Closing Date pursuant to the Purchase Agreement Documentation; and
(e) in addition to any Asset Sale permitted above, the Company Borrower or any of its Subsidiaries may sell Receivables Related Assets consummate any Asset Sale, provided that (including by capital contributioni) the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; (ii) in connection with the Permitted Receivables Facility;
case of any Asset Sale involving consideration in excess of $5,000,000, 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 (eA) 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 Company or any aggregate amount of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party all Asset Sales made pursuant to Section 6.09;this subpart during any fiscal year of the Borrower shall not exceed 20% of Tangible Net Worth of the Borrower.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and nor will not the Borrower permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of consummate a merger or consolidation, (iii) make or otherwise effect any Acquisition, or (iv) 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 Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary GuarantorGuarantor (except to the extent otherwise permitted under Section 7.06); and (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company Borrower that is not a Subsidiary Guarantor with or Credit Party into any other Domestic Subsidiary of the Company Borrower that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Credit Party;
(b) any Asset Sale by or other disposition of property or assets (i) to the Company to Borrower or any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit PartySubsidiary Guarantor, (ii) from any Subsidiary of the Company (other than the Receivables Subsidiary) to any Domestic Credit Party; (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary Borrower that is not a Credit Party to any Subsidiary; or (v) the Company or any other Subsidiary of the Company to the Company Borrower that is not a Credit Party; provided that no Default or any Subsidiary Event of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 Default shall have occurred and be continuing or Section 6.10would result therefrom;
(c) the Company any transaction permitted pursuant to Section 7.05 or any Subsidiary (other than the Receivables 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 satisfiedSection 7.06;
(d) AGSCany Subsidiary of the Borrower may liquidate, amalgamate or dissolve if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Subsidiary is a Subsidiary Guarantor, any assets or business not otherwise disposed of or transferred in accordance with this Section 7.02 or Section 7.05, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Company Borrower or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facilityanother Subsidiary Guarantor after giving effect to such liquidation or dissolution;
(e) the Company Transactions may be consummated;
(f) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation, consolidation or any disposition, the purpose of which is to effect a disposition or Asset Sale otherwise permitted pursuant to this Section 7.02 or an Investment otherwise permitted under Section 7.05; provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(g) the Borrower and its Subsidiaries may wind upsell 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 2.13(c)(v) (without reinvestment);
(h) any disposition of Equity Interests in, liquidate or dissolve any Indebtedness or other securities of, a Subsidiary that is not a Credit Party or, if Material Subsidiary (and has been designated to the Administrative Agent as not a Material Subsidiary by the Borrower prior to such Subsidiary is a Credit Party, would not (but for already being a Credit Partydisposition) at so long as the time Net Cash Proceeds of any such winding-up, liquidation or dissolution, be required to become a Credit Party Asset Sale pursuant to Section 6.09;this clause (h) are offered to prepay the Term Loans pursuant to
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company No Credit Party will, nor will not, and will not any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) any Borrower with or into the Companya Borrower, provided the Company that a Borrower is the surviving or continuing or resulting corporationPerson; or (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) any Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation Person is a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10;
(b) any Asset Sale by (i) the Company any Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, or (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) any Borrower to any Domestic Credit Party; (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;
(c) any transaction permitted pursuant to Section 7.05;
(d) any subleases and leases or other occupancy agreements of real property, provided that each such sublease or lease or occupancy agreement (i) shall be for a fair market rent and (ii) shall have other terms which then would prevail in the Company market for similar transactions between unaffiliated parties dealing at arm’s length;
(e) any Sale and Lease-Back Transaction permitted pursuant to Section 7.17;
(f) licenses by any Credit Party of its trademarks, in the ordinary course of its business; provided that, in each case, (A) the license is for a fair market royalty, (B) the other terms of the transaction are terms which then would prevail in the market for similar transactions between unaffiliated parties dealing at arm’s length, (C) all steps necessary to perfect the Administrative Agent’s security interest in the license agreement, royalty payments and other rights of such Credit Party in connection therewith have been taken, (D) such license does not materially impair Mid Pac’s right to use the name “Mid Pac” in Hawaii or the value of such name to Mid Pac in Hawaii and (E) such license does not materially impair HIE’s right to use the name “HIE Retail” in Hawaii or the value of such name to HIE in Hawaii;
(g) in addition to any Asset Sale permitted above, any Borrower or any Subsidiary may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $500,000, at least five Business Days prior to the date of completion of such Asset Sale, the 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 than 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 Receivables Subsidiaryaggregate amount of all such Asset Sales made pursuant to this subpart during any fiscal year of the Borrowers shall not exceed $1,000,000 in any fiscal year and $2,000,000 in the aggregate for all such Asset Sales over the life of this Agreement;
(h) the winding-up, liquidation and dissolution of Smiley’s Super Service, Inc.; provided, however, that all assets of Smiley’s Super Service, Inc. shall be transferred to HIE in connection with such winding-up, liquidation and dissolution;
(i) the Permitted Condo Sale; and
(j) any 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;
(d) AGSC, the Company or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company No Credit Party will, nor will not, and will not any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) without the prior written consent of the Administrative Agent in the exercise of its Permitted Discretion, sell or dispose of any of its Real Property, any Mezzanine Loan Investment or any Note Receivable Investment, or convert any Mezzanine Loan Investment or Note Receivable Investment to an ownership interest in the underlying Real Property, (v) sell or otherwise dispose of any of its other property or assets outside the ordinary course of business, or otherwise make or otherwise effect any Asset Sale, or (vvi) 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; or (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party; (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;
(c) any transaction permitted pursuant to Section 7.05; and
(d) the Company Borrower or any Subsidiary (other than the Receivables 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;
(d) AGSC, the Company or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;.
Appears in 1 contract
Samples: Credit Agreement (Preferred Apartment Communities Inc)
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) 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 Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(b) the liquidation or dissolution of any Subsidiary of the Borrower if the Borrower determines, in its commercially reasonable business judgment, that such liquidation or dissolution is in the best interests of the Borrower and its Subsidiaries;
(c) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party; or (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower to any other Subsidiary; Foreign Subsidiary of the Borrower;
(ivd) any Subsidiary that is not a Credit Party transaction permitted pursuant to any Subsidiary; or Section 7.05;
(ve) the Company Borrower or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;
(c) the Company or any Subsidiary (other than the Receivables 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
(f) non-exclusive licenses of real or personal property in the ordinary course of business;
(dg) AGSCin addition to any Asset Sale permitted above, the Company Borrower or any of its Subsidiaries may sell Receivables Related Assets consummate any Asset Sale, provided that (including by capital contribution) in connection with the Permitted Receivables Facility;
(ei) the Company consideration for each such Asset Sale represents fair value and at least 75% of such consideration consists of cash or any Cash Equivalents and (ii) the aggregate amount of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party all Asset Sales made pursuant to Section 6.09;this subpart during any fiscal year of the Borrower shall not exceed $1,000,000.
Appears in 1 contract
Samples: Credit Agreement (Amber Road, Inc.)
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Immaterial Subsidiary into any other Immaterial Subsidiary, provided that if any such Immaterial Subsidiary is a Subsidiary Guarantor, such Subsidiary Guarantor shall be the surviving or continuing or resulting Person; (iii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into any other Subsidiary Guarantor(other than an Immaterial Subsidiary), provided that the surviving or continuing or resulting corporation Person is not a Foreign Subsidiary and is or becomes a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party; (iii) any Domestic Credit Party (other than the Borrower) to any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to Borrower, provided that the aggregate fair market value of all such Asset Sales shall not at any other Subsidiarytime exceed $75,000,000; (iv) any Immaterial Subsidiary that is not a Credit Party Subsidiary Guarantor to any other Immaterial Subsidiary or any Foreign Subsidiary; or (v) the Company or any Foreign Subsidiary of the Company Borrower to the Company or any other Foreign Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(c) the Company Borrower or any Subsidiary (other than the Receivables 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;
(d) AGSCthe Borrower or any Subsidiary may consummate any Asset Sale of any Real Property which is not necessary to the conduct of its respective business;
(e) in addition to any Asset Sale permitted above, the Company Borrower or any of its Subsidiaries may sell Receivables Related Assets consummate any Asset Sale, provided that (including by capital contributioni) the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; (ii) in connection with the Permitted Receivables Facility;case of any Asset Sale involving consideration in excess of $25,000,000, 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 transaction; and (iii) the aggregate amount of all Asset Sales made pursuant to this subpart after the Closing Date shall not exceed $100,000,000 at any time; and
(ef) the Company any Immaterial Subsidiary may be dissolved or any of its Subsidiaries may wind wound up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, or (iv) 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Restricted Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Immaterial Subsidiary of the Company (other than the Receivables Subsidiary) with or into any other Immaterial Subsidiary, provided that if any such Immaterial Subsidiary is a Subsidiary Guarantor, provided that such Subsidiary Guarantor shall be the surviving or continuing or resulting corporation is a Subsidiary GuarantorPerson; (iii) any Foreign Restricted Subsidiary of the Company Borrower with or into any Canadian Credit Partyother Restricted Subsidiary, provided that if any such Canadian Credit Party Restricted Subsidiary is a Subsidiary Guarantor, then the surviving or continuing or resulting corporationPerson is not a Foreign Subsidiary and is or becomes a Subsidiary Guarantor; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), Borrower; or (v) any Domestic Restricted Subsidiary of the Company that is not a Subsidiary Guarantor with may merge or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made amalgamate in order to avoid consummate a Permitted Organizational Restructuring, provided that when any Restricted Subsidiary that is a Credit Party is merging or amalgamating with another Restricted Subsidiary, a Credit Party shall be a continuing or surviving Person, as applicable, or the application resulting entity shall succeed as a matter of Section 6.09 or Section 6.10law to all of the Obligations of such Credit Party;
(b) any Asset Sale by (i) the Company to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Domestic Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party, provided that the aggregate fair market value of all Asset Sales from a Foreign Subsidiary to a Domestic Credit Party shall not at any time exceed the greater of (x) $63,750,000 and (y) 60% of Consolidated EBITDA for the most recently ended Testing Period for which financial statements have been delivered or were required to be delivered; (iii) any Foreign Subsidiary of the Company Domestic Credit Party (other than a Canadian Credit Partythe Borrower) to any other SubsidiarySubsidiary that is not a Credit Party, provided that the aggregate fair market value of all such Asset Sales shall not at any time exceed the greater of (x) $15,937,500 and (y) 15% of Consolidated EBITDA for the most recently ended Testing Period for which financial statements have been delivered or were required to be delivered; (iv) any Subsidiary that is not a Credit Party Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor or any Foreign Subsidiary; or (v) the Company or any Foreign Subsidiary of the Company Borrower to the Company or any other Foreign Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(c) the Company or any Subsidiary (other than the Receivables 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;
(d) AGSC, the Company or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company No Borrower will, nor will not, and will not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) 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 Company (other than the Receivables Subsidiary) with or into the Company, provided the Company is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary (other than the Foreign Borrower) of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Company;
(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 Company to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit PartySubsidiary Guarantor, (ii) any Subsidiary of the Company to any Credit Party (other than the Receivables Subsidiary) to any Domestic Credit PartyForeign Borrower); (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 (iv) any Foreign Subsidiary (other than the Foreign Borrower) of the Company to any other Foreign Subsidiary of the Company Company;
(other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (ve) the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;
(c) the Company or any Subsidiary (other than the Receivables Subsidiary) may make any Acquisition that is a Permitted Acquisition, provided that all of the conditions contained in the such definition of the term Permitted Acquisition are satisfied;
(df) AGSCany 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 Company such Borrower or any of its Subsidiaries may sell Receivables Related Assets consummate any Asset Sale, provided that (including by capital contributioni) in connection with the Permitted Receivables Facility;
case of any Asset Sale involving consideration in excess of $50,000,000, at least five Business Days prior to the date of completion of such Asset Sale, such Borrower shall have delivered to the Administrative Agent an officer’s certificate of an Authorized Officer, which certificate shall contain (eA) 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 (ii) the Company or any aggregate amount of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party all Asset Sales made pursuant to Section 6.09;this subpart during any fiscal year of the Company shall not exceed $100,000,000.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company No Credit Party will, nor will not, and will not any Credit Party permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) 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) so long as no Event of Default has occurred and is continuing, or would result therefrom, the merger, consolidation or amalgamation of (i) any Restricted Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Restricted Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), Borrower or (viv) any Domestic domestic Restricted Subsidiary of the Company that is not a Subsidiary Guarantor with or Credit Party into any other Domestic domestic Restricted Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Credit Party;
(b) so long as no Event of Default has occurred and is continuing, or would result therefrom, any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Restricted Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party; (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower to any other Subsidiary; Foreign Subsidiary of the Borrower or (iv) any domestic Restricted Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any other domestic Restricted Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does that is not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10a Credit Party;
(c) any transaction permitted pursuant to Section 7.05 or 7.06;
(d) the Company 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 75% of such consideration consists of cash, (ii) in the case of any Asset Sale involving consideration in excess of $10,000,000, at least three 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 Event of Default has occurred and is continuing, or would result from consummation of such transaction and (iii) the 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);
(e) so long as no Event of Default has occurred and is continuing, or would result therefrom, the 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, provided, that the 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);
(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 above, the 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) $10,000,000 and (ii) an amount equal to 10% of Adjusted Consolidated EBITDA as of the last day of the most recently ended Testing Period, provided, that the 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 Borrower or any Subsidiary (other than the Receivables 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;
(di) AGSCso long as no Event of Default has occurred and is continuing, the Company or would result therefrom, any of its Subsidiaries Restricted Subsidiary may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may wind updissolve, liquidate or dissolve any Subsidiary wind up its affairs (x) if the Borrower determines in good faith that such dissolution, liquidation or winding up is not a Credit Party orin the best interests of the Borrower and (y) so long as, if such Restricted Subsidiary is a Credit PartyGuarantor, would not (but for already being the assets or business of such Restricted Subsidiary shall be transferred to, or otherwise owned and conducted by, a Credit Party; and
(j) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;Ordinary Course Dispositions.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company No Credit Party will, nor will not, and will not any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into consummate 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 except that each of the foregoing at any future time, except thatfollowing shall be permitted (in the case of clauses (d) and (f), if no Default or Event of Default shall have occurred and be continuing continuing, and in all cases, if no Default or Event of Default would result therefrom each of the following shall be permitted:therefrom):
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation Person is a Subsidiary Guarantor; or (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided Borrower that such Canadian is not a Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company Borrower that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Credit Party;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party; or (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary Borrower that is not a Credit Party to any Subsidiary; or (v) the Company or any other Foreign Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does Borrower that is not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10a Credit Party;
(c) the Company or any Subsidiary (other than the Receivables 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;
transaction permitted pursuant to Section 7.05; (d) AGSCin addition to any Asset Sale permitted above, the Company Borrower or any of its Subsidiaries may sell Receivables Related Assets consummate any Asset Sale, provided that (including by capital contributioni) the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; (ii) in connection with the Permitted Receivables Facility;
case of any Asset Sale involving consideration in excess of $1,000,000, 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 (eA) 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 Company or any aggregate amount of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if all such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party Asset Sales made pursuant to Section 6.09this subpart during any fiscal year of the Borrower shall not exceed $5,000,000 in any fiscal year and $10,000,000 in the aggregate for all such Asset Sales over the life of this Agreement;
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company No Credit Party will, nor will not, and will not any Credit Party permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) make or otherwise effect any Asset SaleSale outside the ordinary course of business, 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) a Borrower into another Borrower; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) a Borrower with or into the Companya Borrower, provided the Company such Borrower is the surviving or continuing or resulting corporationPerson; or (iiiii) any Subsidiary of the Company (other than the Receivables Subsidiary) a Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10;
(b) any Asset Sale by (i) the Company to any other Domestic Credit Party, or by any Canadian a Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) to any Domestic Credit Party; (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;
(c) the Company or any Subsidiary (other than the Receivables 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 satisfiedtransaction permitted pursuant to Section 7.05;
(d) AGSCany Asset Sale to the extent that such property is exchanged substantially contemporaneously for credit against the purchase price of similar replacement property;
(e) a Parent or any Subsidiary may make the Asset Sales previously disclosed in writing to the Lender on or before the date hereof;
(f) the winding-up, liquidation or dissolution of Subsidiaries into a Credit Party or the Company winding up or deregistration of Peabody Energy Australia PCI Management Pty Ltd, Peabody Energy Australia PCI Financing Pty Ltd and/or Peabody Energy Australia PCI Exploration Pty Ltd;
(g) any Asset Sale which results from a pre-emptive or buy out right which is triggered as a result of (i) any Insolvency Event affecting Peabody Energy Corporation or any of its Subsidiaries incorporated in the United States of America or (ii) an “Event of Default” occurring under the US Credit Agreement (as that term is defined therein); and
(h) in addition to any Asset Sale permitted above, a Parent or any of its Subsidiaries may sell Receivables Related Assets consummate any Asset Sale, provided that (including by capital contribution) in connection with the Permitted Receivables Facility;
(ei) the Company or any consideration for each such Asset Sale represents fair value and at least 80% of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not consideration consists of cash; and (but for already being a Credit Partyii) at the time aggregate amount of any all such winding-up, liquidation or dissolution, be required to become a Credit Party Asset Sales made pursuant to Section 6.09;this subpart during any fiscal year of the Borrowers shall not exceed $7,500,000 in any fiscal year and $30,000,000 in the aggregate for all such Asset Sales over the life of this Agreement.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrowers will not, and will not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) make or otherwise effect any Asset Sale, or (v) agree to do any of the foregoing at any future time, except that, each of the following shall be permitted:
(a) ICO Minerals may be dissolved or merged with or into any Loan Party, provided that the surviving or continuing or resulting corporation is Loan Party, and 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) therefrom, the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) with or into the Companyany Borrower, provided the Company such Borrower is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) 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 Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Subsidiary;
(b) if no Default or Event of Default shall have occurred and be continuing or would result therefrom, any Asset Sale by (i) the Company a Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Loan Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) to any Domestic Credit Loan Party; , or (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to any other Foreign Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;
(c) the Company if no Default or Event of Default shall have occurred and be continuing or would result therefrom, any Borrower or any Subsidiary (other than the Receivables 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;
(d) AGSCif no Default or Event of Default shall have occurred and be continuing or would result therefrom, in addition to any Asset Sale permitted above, any Borrower or any Subsidiary may consummate any Asset Sale, provided that (i) the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; (ii) in the case of any Asset Sale involving consideration in excess of $500,000, at least five Business Days prior to the date of completion of such Asset Sale, the Company Borrower Representative 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 made pursuant to this subpart during any fiscal year of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables FacilityBorrowers shall not exceed $1,000,000;
(e) The Borrowers and their Subsidiaries shall be permitted to make Consolidated Capital Expenditures, so long as no Default or Event of Default has occurred and is continuing or will occur as a result of such Consolidated Capital Expenditure; and
(f) The Borrowers and their Subsidiaries shall be permitted to make and dispose of the Company or any of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party investments permitted pursuant to Section 6.09;7.05(a), (b), (c), or (d).
Appears in 1 contract
Samples: Credit Agreement (Ico Inc)
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company will not, and will not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve their 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company Holdings (other than the Receivables SubsidiaryBorrower) with or into the CompanyHoldings, provided the Company Holdings is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company Holdings (other than the Receivables SubsidiaryBorrower) with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company Holdings that is a Guarantor with or into any Canadian Credit Partythe Borrower, provided that such Canadian Credit Party the Borrower is the surviving or continuing or resulting corporation; or (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Holdings with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10;Holdings; and
(b) any Asset Sale by (i) the Company Holdings to any other Domestic Credit Party, or by any Canadian Credit Party to any (other Canadian Credit Partythan the Borrower), (ii) any Subsidiary of the Company Holdings (other than the Receivables SubsidiaryBorrower) to any Domestic Credit Party; or (iii) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Holdings to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Foreign Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;
(c) the Company or any Subsidiary (other than the Receivables 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;
(d) AGSC, the Company or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;Holdings.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the The Company will not, and will not permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve their 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 their 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 Company (other than the Receivables Subsidiary) with or into the Company, provided the Company is the surviving or continuing or resulting corporation; (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Foreign Credit Party, provided that such Canadian Foreign Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Foreign Credit Party) with or into any other Foreign Subsidiary of the Company (other than a Canadian Foreign Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10;
(b) any Asset Sale by (i) the Company to any other Domestic Credit Party, or by any Canadian Foreign Credit Party to any other Canadian Foreign Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) to any Domestic Credit Party; (iii) any Foreign Subsidiary of the Company (other than a Canadian Foreign Credit Party) to any other SubsidiaryForeign Subsidiary or any Domestic Subsidiary that is not a Subsidiary Guarantor; (iv) any Domestic Subsidiary that is not a Credit Party Subsidiary Guarantor to any SubsidiaryForeign Subsidiary or to any other Domestic Subsidiary that is not a Subsidiary Guarantor; or (v) the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10;.
(c) the Company or any Subsidiary (other than the Receivables 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;
(d) AGSC, the Company or any of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may (i) make a Permitted Asset Disposition or (ii) wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;
(f) in addition to any Asset Sale permitted above, the Company 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 75% of such consideration consists of cash except that any portion of such consideration consisting of the assumption of liabilities, direct or contingent, of the Company or any of its Subsidiaries by the transferee shall be excluded from such calculation; (ii) in the case of any Asset Sale involving consideration in excess of $10,000,000, at least five Business Days prior to the date of completion of such Asset Sale, the Company shall have delivered to the Global Agent an officer’s certificate executed on behalf of the Company 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 made pursuant to this subpart during any fiscal year of the Company shall not exceed $150,000,000;
(g) the Receivables Subsidiary may sell or transfer Account Receivables to any Person (other than the Company or any of the Company’s Subsidiaries or Affiliates) in connection with any receivables put option, credit default swap, credit insurance arrangement or other transaction pursuant to which the Receivables Subsidiary xxxxxx credit risk related to account debtors under certain Account Receivables, provided that (i) no obligation of the Receivables Subsidiary in connection with such transaction shall be guaranteed by the Company or any Subsidiary of the Company, and (ii) there shall be no recourse to or obligation of the Company or any Subsidiary of the Company (other than the Receivables Subsidiary) whatsoever in connection with such transaction other than pursuant to customary representations, warranties, covenants and indemnities entered into in connection with such put option, credit default swap, credit insurance arrangement or other transaction;
(h) Asset Sales in connection with the World Headquarters Initiative in an aggregate amount not to exceed $75,000,000;
(i) Asset Sales with respect to inventory, supplies, materials and equipment in connection with the restructuring and expansion of the Company’s Chinese operations in an aggregate amount not to exceed $5,000,000;
(j) to the extent the following would otherwise be prohibited by this Section 7.02, Investments permitted by Section 7.05, Liens permitted by Section 7.03, and dividends, distributions and Share Repurchases permitted by Section 7.06; and
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivable financing transaction.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, or (iv) 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Restricted Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Immaterial Subsidiary of the Company (other than the Receivables Subsidiary) with or into any other Immaterial Subsidiary, provided that if any such Immaterial Subsidiary is a Subsidiary Guarantor, provided that such Subsidiary Guarantor shall be the surviving or continuing or resulting corporation is a Subsidiary GuarantorPerson; (iii) any Foreign Restricted Subsidiary of the Company Borrower with or into any Canadian Credit Partyother Restricted Subsidiary (other than an Immaterial Subsidiary), provided that if any such Canadian Credit Party Restricted Subsidiary is a Subsidiary Guarantor, then the surviving or continuing or resulting corporationPerson is not a Foreign Subsidiary and is or becomes a Subsidiary Guarantor; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), Borrower; or (v) any Domestic Restricted Subsidiary of the Company that is not a Subsidiary Guarantor with may merge or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made amalgamate in order to avoid consummate a Permitted Organizational Restructuring, provided that when any Restricted Subsidiary that is a Credit Party is merging or amalgamating with another Restricted Subsidiary, a Credit Party shall be a continuing or surviving Person, as applicable, or the application resulting entity shall succeed as a matter of Section 6.09 or Section 6.10law to all of the Obligations of such Credit Party;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party, provided that the aggregate fair market value of all Asset Sales from a Foreign Subsidiary to a Domestic Credit Party shall not at any time exceed $100,000,000; (iii) any Domestic Credit Party (other than the Borrower) to any Foreign Subsidiary of the Borrower, provided that the aggregate fair market value of all such Asset Sales shall not at any time exceed $25,000,000; (iv) any Immaterial Subsidiary that is not a Subsidiary Guarantor to any other Immaterial Subsidiary or any Foreign Subsidiary; or (v) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower to any other Subsidiary; (iv) any Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any Foreign Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(c) the Company Borrower or any Restricted Subsidiary (other than the Receivables 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;
(d) AGSC, the Company Borrower or any Restricted Subsidiary may consummate any Asset Sale of any Real Property which is not necessary to the conduct of its Subsidiaries may sell Receivables Related Assets (including by capital contribution) in connection with respective business, provided that the Permitted Receivables Facilityaggregate fair market value of all such Asset Sales shall not at any time exceed $20,000,000;
(e) in addition to any Asset Sale permitted above, the Company Borrower or any of its Restricted Subsidiaries may wind upconsummate any Asset Sale, liquidate or dissolve any Subsidiary provided that is not a Credit Party orthe consideration for each such Asset Sale represents fair value and, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at in the time case of any Asset Sale for consideration in excess of $25,000,000, at least 75% of such winding-consideration consists of cash or Cash Equivalents;
(f) any Immaterial Subsidiary may be dissolved or wound up;
(g) the Borrower or any Restricted Subsidiary may make any Acquisition using the Available Amount so long as, liquidation on a Pro Forma Basis after giving effect thereto, (i) no Event of Default shall have occurred or dissolution, be continuing and (ii) immediately after giving effect thereto on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements were required to become a Credit Party have been delivered pursuant to Section 6.096.01, the Total Net Leverage Ratio does not exceed 4.90 to 1.00;
(h) the Borrower or any Restricted Subsidiary may consummate any Asset Sale as part of a Permitted Organizational Restructuring; and
(i) the consummation of the Purchase and any other transactions in connection therewith in accordance with Section 4.01(x).
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Immaterial Subsidiary into any other Immaterial Subsidiary, provided that if any such Immaterial Subsidiary is a Subsidiary Guarantor, such Subsidiary Guarantor shall be the surviving or continuing or resulting Person; (iii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into any other Subsidiary Guarantor(other than an Immaterial Subsidiary), provided that the surviving or continuing or resulting corporation Person is not a Foreign Subsidiary and is or becomes a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party, provided that the aggregate fair market value of all Asset Sales from a Foreign Subsidiary to a Domestic Credit Party shall not at any time exceed $100,000,000; (iii) any Domestic Credit Party (other than the Borrower) to any Foreign Subsidiary of the Borrower, provided that the aggregate fair market value of all such Asset Sales shall not at any time exceed $100,000,000; (iv) any Immaterial Subsidiary that is not a Subsidiary Guarantor to any other Immaterial Subsidiary or any Foreign Subsidiary; (v) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower to any other Subsidiary; (iv) any Foreign Subsidiary that is not a Credit Party to any Subsidiaryof the Borrower; or (vvi) any Foreign Subsidiary, other than as otherwise provided in this clause (b), provided that the Company or any Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the aggregate fair market value of all such asset sales made pursuant to this clause (v) does Asset Sales shall not at any time exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.1030,000,000;
(c) the Company Borrower or any Subsidiary (other than the Receivables 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;
(d) AGSCthe Borrower or any Subsidiary may consummate any Asset Sale of any Real Property which is not necessary to the conduct of its respective business, provided that the aggregate fair market value of all such Asset Sales shall not at any time exceed $20,000,000;
(e) in addition to any Asset Sale permitted above, the Company Borrower or any of its Subsidiaries may sell Receivables Related Assets consummate any Asset Sale, provided that (including by capital contributioni) the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; (ii) in connection with the Permitted Receivables Facility;
case of any Asset Sale involving consideration in excess of $50,000,000, 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 transaction; (iii) the aggregate amount of all Asset Sales made pursuant to this clause (e) after the Company or any Closing Date shall not exceed 25% of its Subsidiaries may wind up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not Total Consolidated Assets; and (but for already being a Credit Partyiv) at the time aggregate amount of any such winding-up, liquidation or dissolution, be required to become a Credit Party Asset Sales made pursuant to Section 6.09;this clause (e) during any fiscal year shall not exceed 15% of Total Consolidated Assets; and
(f) any Immaterial Subsidiary may be dissolved or wound up. LEGAL02/37021070v10 -84-
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger or consolidation, (iii) make or otherwise effect any Acquisition, (iv) 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 therefrom, each of the following shall be permitted:
(a) the merger, consolidation or amalgamation of (i) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Immaterial Subsidiary into any other Immaterial Subsidiary, provided that if any such Immaterial Subsidiary is a Subsidiary Guarantor, such Subsidiary Guarantor shall be the surviving or continuing or resulting Person; (iii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into any other Subsidiary Guarantor(other than an Immaterial Subsidiary), provided that the surviving or continuing or resulting corporation Person is not a Foreign Subsidiary and is or becomes a Subsidiary Guarantor; (iii) any Foreign Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Subsidiary of the Company (other than a Canadian Credit Party), or (v) any Domestic Subsidiary of the Company that is not a Subsidiary Guarantor with or into any other Domestic Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(b) any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party; (iii) any Domestic Credit Party (other than the Borrower) to any Foreign Subsidiary of the Company (other than a Canadian Credit Party) to Borrower, provided that the aggregate fair market value of all such Asset Sales shall not at any other Subsidiarytime exceed $75,000,000; (iv) any Immaterial Subsidiary that is not a Credit Party Subsidiary Guarantor to any other Immaterial Subsidiary or any Foreign Subsidiary; or (v) the Company or any Foreign Subsidiary of the Company Borrower to the Company or any other Foreign Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10Borrower;
(c) the Company Borrower or any Subsidiary (other than the Receivables 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) AGSCthe Borrower or any Subsidiary may consummate any Asset Sale of any Real Property which is not necessary to the conduct of its respective business;
(e) in addition to any Asset Sale permitted above, the Company Borrower or any of its Subsidiaries may sell Receivables Related Assets consummate any Asset Sale, provided that (including by capital contributioni) the consideration for each such Asset Sale represents fair value and at least 90% of such consideration consists of cash; (ii) in connection with the Permitted Receivables Facility;case of any Asset Sale involving consideration in excess of $10,000,000, 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 transaction; and (iii) the aggregate amount of all Asset Sales made pursuant to this subpart during any fiscal year of the Borrower shall not exceed $25,000,000; and
(ef) the Company any Immaterial Subsidiary may be dissolved or any of its Subsidiaries may wind wound up, liquidate or dissolve any Subsidiary that is not a Credit Party or, if such Subsidiary is a Credit Party, would not (but for already being a Credit Party) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;.
Appears in 1 contract
Consolidation, Merger, Acquisitions, Asset Sales, etc. Each of Holdings and the Company No Credit Party will, nor will not, and will not any Credit Party permit any of its Restricted Subsidiaries to, (i) wind up, liquidate or dissolve their its affairs, (ii) enter into any transaction of merger merger, consolidation or consolidationamalgamation, (iii) make or otherwise effect any Acquisition, (iv) 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) so long as no Event of Default has occurred and is continuing, or would result therefrom, the merger, consolidation or amalgamation of (i) any Restricted Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into the CompanyBorrower, provided the Company Borrower is the surviving or continuing or resulting corporation; (ii) any Restricted Subsidiary of the Company (other than the Receivables Subsidiary) Borrower with or into any Subsidiary Guarantor, provided that the surviving or continuing or resulting corporation is a Subsidiary Guarantor; (iii) any Foreign Non-U.S. Subsidiary of the Company with or into any Canadian Credit Party, provided that such Canadian Credit Party is the surviving continuing or resulting corporation; (iv) any Foreign Subsidiary of the Company (other than a Canadian Credit Party) Borrower with or into any other Foreign Non-U.S. Subsidiary of the Company (other than a Canadian Credit Party), Borrower or (viv) any Domestic domestic Restricted Subsidiary of the Company that is not a Subsidiary Guarantor with or Credit Party into any other Domestic domestic Restricted Subsidiary of the Company that is not a Subsidiary Guarantor so long as no merger, consolidation or amalgamation permitted pursuant to the foregoing Section 7.02(a) is made in order to avoid the application of Section 6.09 or Section 6.10Credit Party;
(b) so long as no Event of Default has occurred and is continuing, or would result therefrom, any Asset Sale by (i) the Company Borrower to any other Domestic Credit Party, or by any Canadian Credit Party to any other Canadian Credit Party, (ii) any Restricted Subsidiary of the Company (other than the Receivables Subsidiary) Borrower to any Domestic Credit Party; (iii) any Foreign Non-U.S. Subsidiary of the Company (other than a Canadian Credit Party) Borrower to any other Subsidiary; Non-U.S. Subsidiary of the Borrower or (iv) any domestic Restricted Subsidiary that is not a Credit Party to any Subsidiary; or (v) the Company or any other domestic Restricted Subsidiary of the Company to the Company or any Subsidiary of the Company so long as the fair market value of all such asset sales made pursuant to this clause (v) does that is not exceed $10,000,000 during any fiscal year; so long as no Asset Sale permitted pursuant to the foregoing 7.02(b) is made in order to avoid the application of Section 6.09 or Section 6.10a Credit Party;
(c) any transaction permitted pursuant to Section 7.05 or 7.06;
(d) the Company 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 75% of such consideration consists of cash, (ii) in the case of any Asset Sale involving consideration in excess of $10,000,000, at least three 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 Event of Default has occurred and is continuing, or would result from consummation of such transaction and (iii) the 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);
(e) so long as no Event of Default has occurred and is continuing, or would result therefrom, the 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, provided, that the 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);
(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 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) $20,000,000 and (y) an amount equal to 10% of Adjusted Consolidated EBITDA (calculated on a trailing 12-month basis as of the last day of the Testing Period most recently ended for which financial statements have been or were required to be delivered pursuant to Section 6.01(a) or 6.01(b) at the time of such Asset Sale and on a Pro Forma Basis for transactions consummated between the last day of such Testing Period and such time), provided, that the 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 Borrower or any Subsidiary (other than the Receivables Subsidiary) may make any Acquisition that is a Permitted Acquisition, provided Acquisition or any Investment that all of is not prohibited by the conditions contained in the definition of the term Permitted Acquisition are satisfiedterms hereof;
(di) AGSCso long as no Event of Default has occurred and is continuing, the Company or would result therefrom, any of its Subsidiaries Restricted Subsidiary may sell Receivables Related Assets (including by capital contribution) in connection with the Permitted Receivables Facility;
(e) the Company or any of its Subsidiaries may wind updissolve, liquidate or dissolve any Subsidiary wind up its affairs (x) if the Borrower determines in good faith that such dissolution, liquidation or winding up is not a Credit Party orin the best interests of the Borrower and (y) so long as, if such Restricted Subsidiary is a Credit PartyGuarantor, would not (but for already being the assets or business of such Restricted Subsidiary shall be transferred to, or otherwise owned and conducted by, a Credit Party; and
(j) at the time of any such winding-up, liquidation or dissolution, be required to become a Credit Party pursuant to Section 6.09;Ordinary Course Dispositions.
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