Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent), or enter into any Sale and Leaseback Transaction, except that: (a) Restricted Payments may be made to the extent permitted by Section 8.4; (b) Investments may be made to the extent permitted by Section 8.7; (c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary; (d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary; (e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables); (f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”); (g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary; (h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder; (i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property; (j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary); (k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve; (l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization; (m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and (n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 5 contracts
Samples: Credit Agreement (Huntsman International LLC), Credit Agreement (Huntsman International LLC), Credit Agreement (Huntsman International LLC)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than sales of inventory, with respect to raw materials, supplies and used or surplus equipment, in each case in the ordinary course of business), or enter into any such transaction involving sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) all or substantially all of the Equity Interests in or assets of the Borrowerany Person (each such purchase or acquisition, enter into an agreement “Acquisition”) (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments may be made to the extent permitted by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(ci) each of the Borrower and any of its Subsidiaries may lease (as lessor) real liquidate or personal otherwise dispose of obsolete or worn-out property in the ordinary course of business other than business, and may dissolve, liquidate or merge out of existence a Subsidiary, the continued existence of which is no longer materially advantageous to a Receivables Subsidiarythe Borrower or its Subsidiaries;
(dii) each of the Borrower and any of its Subsidiaries may make sales sell assets including pursuant to a transaction of merger or transfers consolidation, including the Equity Interests of inventorya Subsidiary of the Borrower so long as (x) no Default or Event of Default then exists or would result therefrom, Cash, Cash Equivalents and Foreign Cash Equivalents (y) in the ordinary course case of business the sale of the Equity Interests of any Credit Party, all of the Equity Interests of such Credit Party and its other than Subsidiaries are sold pursuant to a Receivables Subsidiarysuch sale and (z) the Fair Market Value of such assets when added to the Fair Market Value of all assets sold pursuant to this clause (ii) of the Borrower and its Subsidiaries previously sold pursuant to this Section 8.2(ii), does not exceed $350,000,000 in any Fiscal Year;
(eiii) each of the Borrower and any of its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and and, subject to Section 8.2(vii), not as part of any bulk financing transaction;
(iv) each of the Borrower and any of its Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(v) each of the Borrower and any of its Subsidiaries may convey, lease, rent, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or to any other Subsidiary of the Borrower;
(vi) each of the Borrower and any of its Subsidiaries may merge or consolidate with and into, be dissolved or liquidated into, or amalgamate with any other Person, so long as (i) in the case of any such merger, consolidation, dissolution, liquidation or amalgamation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution, liquidation or amalgamation and such entity is a U.S. Person and (ii) in all other cases, the surviving or continuing corporation of any such merger, consolidation, dissolution, liquidation or amalgamation is a Subsidiary of the Borrower;
(vii) each of the Borrower and any of its Subsidiaries party to an Asset Securitization may sell accounts and related general intangibles, chattel paper, instruments, security and collections with respect thereto pursuant to such Asset Securitization (after the execution thereof), so long as (x) each such sale is in an arm’s-length transaction and on terms consistent with prevailing market conditions for similar transactions at such time and (y) the aggregate Attributable Securitization Indebtedness shall not exceed $400,000,000 at any time outstanding;
(viii) each of the Borrower and any of its Subsidiaries may liquidate or financing otherwise dispose of receivablesCash Equivalents in the ordinary course of business;
(ix) each of the Borrower and any of its Subsidiaries may consummate an Acquisition, so long as no Default or Event of Default shall have occurred and be continuing at the time of the consummation of the proposed Acquisition or immediately after giving effect thereto (each such Acquisition, a “Permitted Acquisition”);
(fx) each of the Borrower and any of its Subsidiaries may transfer and dispose of inventory, raw materials, equipment, Real Property and other tangible assets in exchange for consideration comprised of inventory, raw materials, supplies, used or surplus equipment, Real Property and other tangible assets or some combination thereof, in each case in the ordinary course of business, so long as (x) no Default or Event of Default then exists or would result therefrom and (y) the book value of such assets at the time of the consummation of such sale, when added to the book value of all assets of the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating previously sold pursuant to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f8.2(x), hereafter “Permitted Technology Licenses”);does not exceed $250,000,000 at any time; and
(gxi) any Subsidiary each of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into and any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale convey raw materials, equipment, Real Property and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its other tangible assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used to acquire replacement raw materials, equipment, real property and other tangible assets within 90 270 days after receipt of such Net Sale Proceeds (and in the case of any contractual commitment to (i) repay Senior Secured Notes (2010so apply such Net Sale Proceeds entered into within such 270 day period, within 360 days after receipt of such Net Sale Proceeds); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 3 contracts
Samples: Term Loan Agreement (Owens Corning), Term Loan Agreement (Owens Corning), 364 Day Term Loan Agreement (Owens Corning)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than sales of Inventory in the Ordinary Course of Business), with respect to or enter into any such transaction involving sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) all or substantially all of the property or assets (other than purchases or other acquisitions of Inventory, materials, assets and equipment in the Borrower, enter into an agreement Ordinary Course of Business) of any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Revolving Borrower and its Subsidiaries shall be made to the extent permitted by Section 8.4permitted;
(bii) the Revolving Borrower and its Subsidiaries may (A) sell, liquidate, abandon or otherwise dispose of obsolete, surplus or worn-out property (including intellectual property that is, in the reasonable good faith judgment of the Revolving Borrower, no longer material in the conduct of the business of Revolving Borrower or any of its Subsidiaries) in the Ordinary Course of Business, property not otherwise used or useful to the Revolving Borrower and its Subsidiaries, and other immaterial assets and (B) trade in for credit or exchange of property for property used in the conduct of the business of the Credit Parties; provided that the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (ii) shall not exceed $500,000 in any fiscal year of the Revolving Borrower (for this purpose, using the Fair Market Value of property other than cash);
(iii) Investments may be made to the extent permitted by Section 8.711.05;
(civ) the Revolving Borrower and its Subsidiaries may sell assets (other than the Equity Interests of any Wholly-Owned Subsidiary or sales of Inventory in the Ordinary Course of Business), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and the Revolving Borrower or the respective Subsidiary receives at least Fair Market Value, (x) the consideration received by the Revolving Borrower or such Subsidiary consists of at least 75% cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 6.02(e) and (z) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $500,000 in any fiscal year of the Revolving Borrower (for this purpose, using the Fair Market Value of property other than cash);
(v) each of the Revolving Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 11.04(iv));
(dvi) except after the occurrence and during the continuance of any Event of Default, each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Revolving Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course Ordinary Course of businessBusiness, Accounts Receivable accounts receivable or notes receivable arising in the ordinary course Ordinary Course of business (x) which are overdueBusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fvii) each of the Revolving Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons that, in the manufacture reasonable good faith judgment of chemical products and by-products (the “Technology”) provided that such license shall be assignable to Revolving Borrower, do not materially interfere with the Administrative Agent conduct of the business of the Revolving Borrower or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)its Subsidiaries;
(gviii) any Credit Party and any Subsidiary of any Credit Party may convey, sell or otherwise transfer all or any part of its business, properties and assets to the Revolving Borrower or to any Subsidiary of the Revolving Borrower which is a Credit Party, so long as with respect to the Collateral, any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the Collateral so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken;
(ix) any Subsidiary of the Revolving Borrower (other than a Receivables Subsidiary) may merge or consolidate with and into, or be merged dissolved or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Yearliquidated into, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Revolving Borrower or any Subsidiary of the Revolving Borrower, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving a Borrower, such Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) if such transaction involves a Subsidiary of the Revolving Borrower which is a Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or continuing corporation of any such merger, consolidation, dissolution or liquidation, and (iii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(x) any Foreign Subsidiary of the Revolving Borrower may sellbe merged, leaseconsolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) to, any Subsidiary of the Borrower Revolving Borrower, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests and other assets of such Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (other than a Receivables Subsidiaryto at least the same extent as in effect immediately prior to such merger, consolidation, amalgamation, dissolution, liquidation or transfer) may voluntarily liquidate, wind-up or dissolveand all actions required to maintain said perfected status have been taken;
(lxi) Permitted Acquisitions may be consummated in accordance with the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers requirements of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables SecuritizationSection 10.17;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nxii) the Revolving Borrower and its Subsidiaries may consummate transfer, sell, liquidate or otherwise dispose of Cash Equivalents in the US Commodity Business Sale provided that Ordinary Course of Business, in each case for cash at Fair Market Value and in a transaction not less than 75otherwise prohibited by the other terms of this Agreement;
(xiii) the Revolving Borrower and its Subsidiaries may dispose of property pursuant to sale-leaseback transactions, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such transaction is in an arm’s-length transaction and the Reovlving Borrower or the respective Subsidiary receives at least Fair Market Value, (x) the consideration received by the Revolving Borrower or such Subsidiary consists of at least 90% of cash, (y) the Net Sale Proceeds therefrom are used within 90 days applied and/or reinvested as (and to the extent) required by Section 6.02(e) and (iz) repay Senior Secured Notes the Fair Market Value of all property so disposed of shall not exceed $1,000,000 in any fiscal year;
(2010xiv) the sale, assignment, lapse, expiration, abandonment or other dispositions of Intellectual Property that is, in the reasonable good faith judgment of a Credit Party, no longer material in the conduct of the business of the Credit Parties or any of their Subsidiaries;
(xv) foreclosures, condemnation, expropriation or any similar action on assets or casualty or insured damage to assets of the Revolving Borrower and its Subsidiaries;
(xvi) the Revolving Borrower may sell, assign or transfer any assets to any Subsidiary which is a Guarantor;
(xvii) any Credit Party may sell, assign, or transfer any assets to a Subsidiary that is not a Guarantor not to exceed $500,000 in the aggregate and $250,000 in any fiscal year; provided that on the date of any such sale or transfer and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(xviii) the sale or issuance of Equity Interests to Holdings, the Borrowers or any Subsidiary Guarantor; and
(xix) the Revolving Borrower and its Subsidiaries may sell any assets not otherwise permitted hereunder; provided, that (x) the aggregate Fair Market Value of all assets so sold shall not exceed $500,000 in any fiscal year and (y) at the time of any such sale, no Event of Default shall exist or result from any such sale. To the extent the Required Lenders waive the provisions of this Section 11.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 11.02 (other than to the Revolving Borrower or a Subsidiary thereof); , such Collateral shall be sold free and clear of the Liens created by the Security Documents (ii) repay Senior Notes (2012provided that such Lien shall continue as to any proceeds of such sale to the extent such assets constituted Collateral); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant , and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (International Money Express, Inc.), Credit Agreement (Fintech Acquisition Corp. II)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all including without limitation sales of capital stock and Equity Interests in Subsidiaries) (other than sales of inventory in the assets ordinary course of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agentbusiness), or enter into any Sale sale-leaseback transactions in which the Borrower or any Subsidiary is the obligor, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments the Borrower and its Subsidiaries may be made to sell, convey or otherwise dispose of obsolete, worn-out or surplus property in the extent permitted by Section 8.4ordinary course of business;
(bii) Investments may be made to the extent permitted by Section 8.710.05, Liens may be incurred to the extent permitted by Section 10.01, and Dividends may be paid to the extent permitted by Section 10.03;
(ciii) each of the Borrower and its Subsidiaries may lease sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (iii)), so long as lessor(w) real no Default or personal property Event of Default then exists or would result therefrom, (x) each such sale is in an arm’s-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (y) either such sale constitutes a Permitted Asset Swap or at least 75% of the consideration received by the Borrower or such Subsidiary consists solely of cash or Cash Equivalents and is paid at the time of the closing of such sale, and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) does not exceed $25.0 million per transaction or series of related transactions and $75.0 million in the ordinary course of business other than to a Receivables Subsidiary;
(d) each of aggregate; provided that the Borrower and its Subsidiaries may make sell assets pursuant to this paragraph (iii) where the proceeds of such asset sale or series of related asset sales or transfers of inventory, Cash, Cash Equivalents do not exceed $2.0 million without complying with the preceding clauses (x) and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary(y);
(eiv) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fv) each of the Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee conduct of the Administrative Agent without the consent business of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including Subsidiaries, in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if each case so long as no such grant otherwise affects the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used Collateral Agent’s security interest in the business referred to in Section 8.9 and (B) the Borrower asset or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertysubject thereto;
(jvi) the Borrower or any Subsidiary of the Borrower may sellconvey, lease, transfer license, sell or otherwise dispose of transfer all or any or all part of its business, properties and assets to the Borrower or to any other Wholly-Owned Subsidiary Subsidiary, so long as any security interests granted to the Collateral Agent for the benefit of the Borrower Secured Parties pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (other than to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken; provided that any conveyance, lease, license, sale or transfer made by a Credit Party to any Subsidiary that is not a Credit Party pursuant to this clause (Ivi) from shall be for consideration that is equal to the Borrower Fair Market Value of the business, property or a Domestic Subsidiary to a Foreign Subsidiary assets conveyed, leased, licensed, sold or (II) to a Receivables Subsidiary)transferred;
(kvii) any Subsidiary of the Borrower may merge or consolidate with and into, or be dissolved or liquidated into, the Borrower or any Guarantor, so long as (other than a Receivables Subsidiaryi) may voluntarily liquidatethe Borrower or such Guarantor is the surviving or continuing corporation of any such merger or consolidation and (ii) any security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, wind-up consolidation, dissolution or dissolveliquidation) and all actions required to maintain said perfected status have been taken;
(lviii) any Subsidiary of the Borrower that is not a Guarantor may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its Subsidiaries mayassets to, directly or indirectly, sell, contribute and make other transfers any Subsidiary that is not a Guarantor of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables SecuritizationBorrower;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nix) the Borrower and its Subsidiaries may consummate sell, convey or otherwise dispose of cash and Cash Equivalents in the US Commodity Business Sale provided ordinary course of business, in each case for cash at Fair Market Value;
(x) any Subsidiary that is a Credit Party may sell or issue any of such Subsidiary’s Equity Interests to any Credit Party, and any Subsidiary that is not less a Credit Party may sell or issue any of such Subsidiary’s Equity Interests to the Borrower or any Subsidiary;
(xi) the Borrower may sell the assets described in Schedule VI for Fair Market Value; and
(xii) Permitted Acquisitions may be consummated in accordance with the requirements of Section 9.13. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (other than 75% to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Net Sale Proceeds therefrom are used within 90 days Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant take any actions deemed appropriate in order to Section 4.3effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Shuffle Master Inc), Credit Agreement (Shuffle Master Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions by the Borrower or any of its Subsidiaries of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.48.08;
(b) Investments may be made to the extent permitted by Section 8.7;
(cii) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property to the extent permitted by Section 8.08 and to the extent such lease is not a Capital Lease, the Borrower and its Subsidiaries shall enter into such leases in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(diii) each investments may be made to the extent permitted by Section 8.06;
(iv) the Transaction shall be permitted as contemplated by the Credit Documents;
(v) the Borrower may effect Permitted Acquisitions in accordance with the requirements of Section 7.15;
(vi) the Borrower may cause any Subsidiary to be dissolved if no Permitted Business is operated in connection with such Subsidiary and such dissolution could not reasonably be expected to have a material adverse effect on the performance, business, assets, nature of assets, liabilities, properties, operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to taken as a Receivables Subsidiary;whole; and
(evii) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and assets so long as the aggregate amount of Net Cash Proceeds received from such sales does not exceed $100,000 in the ordinary course aggregate for all such asset sales in any fiscal year. To the extent the Required Banks waive the provisions of business, Accounts Receivable arising this Section 8.02 with respect to the sale of any Collateral (to the extent the Required Banks are permitted to waive such provisions in the ordinary course of business (x) which are overdueaccordance with Section 12.12), or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not any Collateral is sold as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f)8.02, hereafter “Permitted Technology Licenses”);
(g) any Subsidiary such Collateral shall be sold free and clear of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into Liens created by the Borrower so long as Security Documents, and the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Reckson Services Industries Inc), Credit Agreement (Vantas Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.48.07;
(bii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell obsolete or worn-out equipment or materials;
(iv) each of the Borrower and its Subsidiaries may sell other assets, provided that the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (iv) shall not exceed $150,000 in any fiscal year of the Borrower;
(v) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor or any Mortgaged Property existing on the Closing Date), so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $2,000,000 in any fiscal year of the Borrower and $10,000,000 in the aggregate during the term of this Agreement;
(vi) Investments may be made to the extent permitted by Section 8.78.05;
(cvii) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capital Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 8.04(iv));
(dviii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fix) each of the Borrower and its Subsidiaries may license grant licenses, sublicenses, leases or subleases to other Persons in the ordinary course of business and not materially interfering with the conduct of the business of the Borrower or any of its patentsSubsidiaries;
(x) on or after September 30, trade secrets1998, know-how the Borrower and other intellectual property relating its Wholly- Owned Subsidiaries may acquire all or substantially all of the assets of any Person (or all or substantially all of the assets of a product line or division of any Person) or 100% (or at least 80% to the manufacture extent provided below) of chemical products the capital stock of any Person (any such acquisition permitted by this clause (x), a "Permitted Acquisition"), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each of the representations and by-products (the “Technology”) provided that such license warranties contained in Article VI shall be assignable true and correct in all material respects both before and after giving effect to such Permitted Acquisition, (iii) any Liens or Indebtedness assumed or issued in connection with such Permitted Acquisition are otherwise permitted under Section 8.01 or 8.04, as the case may be, (iv) at least 10 Business Days prior to the consummation of any Permitted Acquisition, Holdings shall deliver to the Administrative Agent and each of the Lenders a certificate of Holdings' Chief Financial Officer certifying (and showing the calculations therefor in reasonable detail) that Holdings would have been in compliance with the financial covenants set forth in Sections 8.08, 8.09,and 8.10 for the Measurement Period then most recently ended prior to the date of the consummation of such Permitted Acquisition, in each case with such financial covenants to be determined on a pro forma basis as if such Permitted Acquisition had been consummated on the first day of such Measurement Period (and assuming that any Indebtedness incurred, issued, assumed or repaid in connection therewith had been incurred, issued, assumed or repaid on the first day of, and (except for Indebtedness being repaid) had remained outstanding throughout, such Measurement Period, provided that in the case of any Permitted Acquisition effected before December 31, 1998, the pro forma Consolidated Leverage Ratio for such Measurement Period shall be no greater than 6.50:1.00, (v) the only consideration paid by the Borrower or any assignee of its Wholly-Owned Subsidiaries in connection with any such Permitted Acquisition consists solely of cash (including as a result of any earnout, non-compete or deferred compensation arrangements), Indebtedness assumed or issued to the extent permitted by Section 8.04, Holdings Common Stock and/or Holdings Preferred Stock, (vi) the aggregate consideration paid in connection with all such Permitted Acquisitions effected after the Closing Date (including, without limitation, any earnout, non-compete or deferred compensation arrangements, the aggregate principal amount of any Indebtedness assumed or issued in connection therewith and the fair market value of any Holdings Common Stock or Holdings Preferred Stock issued in connection therewith (as determined in good faith by Holdings)) does not exceed, when added to the aggregate amount of all Capital Expenditures made to effect a Permitted Capital Expansion, the sum of (I) $35,000,000 plus (II) the Retained Equity Amount at such time, (vii) no more than the sum of (I) $10,000,000 plus (II) the Retained Equity Amount at such time in the aggregate may be expended on Permitted Acquisitions in which the Borrower or a Wholly-Owned Subsidiary thereof acquires less than 100% of the Administrative Agent without the consent capital stock of the licensee any Person and no such license shall (iviii) transfer ownership of such Technology and immediately after giving effect to any other Person or (ii) require such Permitted Acquisition, the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)aggregate unutilized Revolving Commitments shall be at least $7,500,000;
(gxi) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may transfer any of its assets to the Borrower and may be merged merged, consolidated or consolidated (x) liquidated with or into the Borrower so long as the Borrower is the surviving entitycorporation of such merger, consolidation or liquidation;
(yxii) any Subsidiary of the Borrower may transfer any of its assets to a Subsidiary Guarantor and may be merged, consolidated or liquidated with or into any one or more Wholly-Owned Subsidiaries other Subsidiary of the Borrower so long as (other than an Unrestricted Subsidiaryi) in the case of any such merger, Airstar Corporationconsolidation or liquidation involving a Subsidiary Guarantor, Huntsman Headquarters Corporation the Subsidiary Guarantor is the surviving corporation of such merger, consolidation or IRIC); providedliquidation, however(ii) in the case of any such merger, that consolidation or liquidation involving a Wholly-Owned Subsidiary or Subsidiaries shall be of the Borrower, the Wholly-Owned Subsidiary is the surviving entity corporation of such merger, consolidation or liquidation and (ziii) with or into no more than $500,000 of assets in any Person in connection with fiscal year of the consummation of an Acquisition; provided, however, Borrower are transferred from a Subsidiary Guarantor that after giving effect is a Wholly-Owned Subsidiary to such merger or consolidation the surviving a Subsidiary shall be Guarantor that is a non-Wholly-Owned Subsidiary;
(hxiii) the Borrower and its Subsidiaries may sellsell or exchange specific items of equipment, transfer so long as the purpose of each sale or otherwise dispose exchange is to acquire (and results within 90 days of any asset such sale or exchange in connection with any Sale and Leaseback Transaction involving Indebtednessthe acquisition of) replacement items of equipment which are, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose reasonable business judgment of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus Subsidiaries, the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% functional equivalent of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as item of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets equipment so sold or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertyexchanged;
(jxiv) the Borrower or any Foreign Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other a Wholly-Owned Foreign Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)Guarantor;
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nxv) the Borrower and its Subsidiaries may consummate sell inventory to their respective Subsidiaries in the US Commodity Business Sale provided that not less ordinary course of business and consistent with past practices for resale by such Subsidiaries in the ordinary course of their business;
(xvi) the Borrower and its Subsidiary Guarantors may sell or otherwise transfer equipment to their Subsidiaries in the ordinary course of business so long as no more than 75% $500,000 of equipment is sold or transferred in any fiscal year of the Net Sale Proceeds therefrom are used within 90 days Borrower pursuant to this clause (i) repay Senior Secured Notes (2010xvi); and
(iixvii) repay Senior Notes the Recapitalization shall be permitted. To the extent the Required Lenders waive the provisions of this Section 8.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 8.02 (2012other than to Holdings or a Subsidiary thereof); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment , such Collateral shall be sold free and clear of Term Loans pursuant the Liens created by the Collateral Documents, and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Globe Manufacturing Corp), Credit Agreement (Globe Manufacturing Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Each Obligor will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their affairs or to enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with materials, equipment and intangible assets in the ordinary course of business) of any person, except that:
(a) save in respect of any sales, leases or disposals described in paragraph (c)(iii) below, this Clause 26.2 does not apply to a member of the CEAL Group to which the CEAL Exception Conditions apply;
(b) Capital Expenditures by the Parent and its Subsidiaries (other than any Receivables Subsidiary) shall be permitted to the extent permitted by Clause 24.1 (Capital Expenditures);
(c) each of the Parent and its Subsidiaries (other than any Receivables Subsidiary) may:
(i) in the ordinary course of business, sell, lease or otherwise dispose of any equipment which, in the reasonable judgment of such person, is obsolete, worn out or otherwise no longer used or useful in the conduct of such person’s business;
(ii) so long as no Default or Event of Default then exists or would result therefrom, sell, lease or otherwise dispose of any other assets (other than the assets described in sub-paragraph (iii) below), provided that:
(A) Fair Market Value: each such sale, lease or disposition shall be in an arm’s-length transaction involving and for Fair Market Value;
(B) 75% Cash Payment: excluding asset sales the Fair Market Value of which, in the aggregate, does not exceed €5,000,000 (or equivalent in other currencies) in any fiscal year of the Parent, at least 75 per cent. of the consideration for all assets sold, leased or otherwise disposed of pursuant to this sub-paragraph (ii) shall be in the form of cash and paid at the time of closing of such sale, lease or other disposition; and
(C) Cap Net Sale Proceeds: the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this sub-paragraph (ii) (for purposes of this proviso only, excluding asset sales or other dispositions where the Net Sale Proceeds therefrom are less than €500,000 (or its equivalent in other currencies)) shall not exceed (x) in the event the Consolidated Leverage Ratio is greater than 3.75:1.00, €15,000,000 (or its equivalent in other currencies) in aggregate in any fiscal year of the Parent and (y) in the event the Consolidated Leverage Ratio is less than or equal to 3.75:1.00, €50,000,000 (or its equivalent in other currencies) in aggregate in any fiscal year of the Parent, provided further, that in addition to the above sales, leases and dispositions, the Parent and its Subsidiaries shall be permitted to effect one or more additional sales or assets so long as (aa) each such sale shall be on an arm’s-length transaction and for Fair Market Value, (bb) at least 90 per cent. of the consideration for all such additional assets sold shall be in the form of cash paid at the time of closing of the respective sale and (cc) the aggregate gross sale proceeds of all such additional assets sold after the Initial Borrowing Date shall not exceed €50,000,000 (or equivalent in other currencies) in aggregate;
(iii) so long as no Default or Event of Default then exists or would result therefrom, sell, lease or otherwise dispose of CEAL or all or substantially all of the assets of the BorrowerCEAL Group, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent), or enter into any Sale and Leaseback Transaction, except provided that:
(aA) Restricted Payments may Fair Market Value: any such sale, lease or disposition shall be made to the extent permitted by Section 8.4in an arm’s-length transaction and for Fair Market Value;
(bB) Investments may be made to the extent permitted by Section 8.7;
(c) each 75% Cash Payment: at least 75 per cent. of the Borrower and its Subsidiaries may lease consideration for all assets sold, leased or otherwise disposed of pursuant to this sub-paragraph (as lessoriii) real or personal property shall be in the ordinary course form of business other than to a Receivables Subsidiary;
(d) each of the Borrower cash and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (paid at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds closing of such disposition are used by the Borrower sale, lease or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactionsdisposition; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 2 contracts
Samples: Senior Facilities Agreement (Moore Labels Inc), Senior Facilities Agreement (Buhrmann Nv)
Consolidation, Merger, Purchase or Sale of Assets, etc. The U.S. Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than sales of inventory, with respect to raw materials, supplies and used or surplus equipment, in each case in the ordinary course of business), or enter into any such transaction involving sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) all or substantially all of the Equity Interests in or assets of the Borrowerany Person (each such purchase or acquisition, enter into an agreement “Acquisition”) (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments may be made to the extent permitted by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(ci) each of the U.S. Borrower and any of its Subsidiaries may lease (as lessor) real liquidate or personal otherwise dispose of obsolete or worn-out property in the ordinary course of business other than business, and may dissolve, liquidate or merge out of existence a Subsidiary that is not a Subsidiary Borrower, the continued existence of which is no longer materially advantageous to a Receivables Subsidiarythe U.S. Borrower or its Subsidiaries;
(dii) each of the U.S. Borrower and any of its Subsidiaries may sell assets including pursuant to a transaction of merger or consolidation, including the Equity Interests of a Subsidiary of the U.S. Borrower that is not a Subsidiary Borrower so long as (x) no Default or Event of Default then exists or would result therefrom, (y) in the case of the sale of the Equity Interests of any Credit Party, all of the Equity Interests of such Credit Party and its other Subsidiaries are sold pursuant to such sale and (z) the Fair Market Value of such assets when added to the Fair Market Value of all assets sold pursuant to this clause (ii) of the U.S. Borrower and its Subsidiaries may make sales or transfers of inventorypreviously sold pursuant to this Section 8.2(ii), Cash, Cash Equivalents and Foreign Cash Equivalents does not exceed $350,000,000 in the ordinary course of business other than to a Receivables Subsidiaryany Fiscal Year;
(eiii) each of the U.S. Borrower and any of its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and and, subject to Section 8.2(vii), not as part of any bulk sale or financing of receivables)transaction;
(fiv) each of the U.S. Borrower and any of its Subsidiaries may license grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the U.S. Borrower or any of its patentsSubsidiaries;
(v) each of the U.S. Borrower and any of its Subsidiaries may convey, trade secretslease, know-how rent, sell or otherwise transfer all or any part of its business, properties and other intellectual property relating assets to the manufacture U.S. Borrower or to any other Subsidiary of chemical products the U.S. Borrower;
(vi) each of the U.S. Borrower and byany of its Subsidiaries may merge or consolidate with and into, be dissolved or liquidated into, or amalgamate with any other Person, so long as (i) in the case of any such merger, consolidation, dissolution, liquidation or amalgamation involving the U.S. Borrower, the U.S. Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution, liquidation or amalgamation and such entity is a U.S. Person (provided, that no Subsidiary Borrower may merge, consolidate or amalgamate with or into, or be dissolved or liquidated into, the U.S. Borrower), (ii) in the case of any such merger, consolidation, dissolution, liquidation or amalgamation involving a Subsidiary Borrower, such Subsidiary Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution, liquidation or amalgamation or, in the event of an amalgamation involving the Canadian Borrower, the continuing Person resulting therefrom is a Wholly-products (Owned Subsidiary of the “Technology”) provided U.S. Borrower organized under the laws of Canada or a province thereof that takes such license shall actions, and deliver all such documents incidental or related thereto, as may be assignable to reasonably requested by the Administrative Agent or any assignee to assume all of the Administrative Agent without the consent obligations of the licensee Canadian Borrower under this Agreement and no the other Loan Documents to which the Canadian Borrower was a party and to become a party to this Agreement and each other Loan Document to which the Canadian Borrower was a party, after which such license continuing Person shall be the “Canadian Borrower” hereunder and under each other Loan Document and (iiii) transfer ownership in all other cases, the surviving or continuing corporation of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use merger, consolidation, dissolution, liquidation or amalgamation is a Subsidiary of the U.S. Borrower;
(vii) each of the U.S. Borrower and any of its Subsidiaries party to an Asset Securitization may sell accounts and related general intangibles, chattel paper, instruments, security and collections with respect thereto pursuant to such licenses permitted by this Section 8.3(fAsset Securitization (after the execution thereof), hereafter so long as (x) each such sale is in an arm’s-length transaction and on terms consistent with prevailing market conditions for similar transactions at such time and (y) the aggregate Attributable Securitization Indebtedness shall not exceed $400,000,000 at any time outstanding;
(viii) each of the U.S. Borrower and any of its Subsidiaries may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business;
(ix) each of the U.S. Borrower and any of its Subsidiaries may consummate an Acquisition, so long as no Default or Event of Default shall have occurred and be continuing at the time of the consummation of the proposed Acquisition or immediately after giving effect thereto (each such Acquisition, a “Permitted Technology LicensesAcquisition”);
(gx) any Subsidiary each of the U.S. Borrower (and any of its Subsidiaries may transfer and dispose of inventory, raw materials, equipment, Real Property and other than a Receivables Subsidiary) may be merged tangible assets in exchange for consideration comprised of inventory, raw materials, supplies, used or consolidated surplus equipment, Real Property and other tangible assets or some combination thereof, in each case in the ordinary course of business, so long as (x) with no Default or into the Borrower so long as the Borrower is the surviving entity, Event of Default then exists or would result therefrom and (y) with or into any one or more Wholly-Owned Subsidiaries the book value of such assets at the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with time of the consummation of an Acquisitionsuch sale, when added to the book value of all assets of the U.S. Borrower and its Subsidiaries previously sold pursuant to this Section 8.2(x), does not exceed $250,000,000 at any time; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;and
(hxi) each of the U.S. Borrower and any of its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale convey raw materials, equipment, Real Property and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its other tangible assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used to acquire replacement raw materials, equipment, real property and other tangible assets within 90 270 days after receipt of such Net Sale Proceeds (and in the case of any contractual commitment to (i) repay Senior Secured Notes (2010so apply such Net Sale Proceeds entered into within such 270 day period, within 360 days after receipt of such Net Sale Proceeds); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 2 contracts
Samples: Credit Agreement (Owens Corning), Credit Agreement (Owens Corning)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Issuer will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business or reinvestments in assets) of any Person if permitted hereby (or agree to do any of the foregoing at any future time), except that:
(ai) Restricted Payments each of the Issuer and its Subsidiaries may (x) in the ordinary course of Business, sell, lease or otherwise dispose of any property other than “Airline Assets” defined in Sub-clause (viii) below, which, in the reasonable judgment of such Person, is obsolete, worn out or otherwise no longer useful in the conduct of such Person’s Business and (y) sell, lease or otherwise dispose of any other property; provided that the aggregate fair market value of all assets subject to sales or other dispositions pursuant to this sub-clause (i)(y) shall not exceed $10.0 million in the aggregate;
(ii) investments may be made to the extent permitted by Section 8.45.2(b);
(b) Investments may be made to the extent permitted by Section 8.7;
(ciii) each of the Borrower Issuer and its Subsidiaries may lease (as lessorlessee) real or personal property property, in the ordinary course of business other than to Business (so long as any such lease does not create a Receivables SubsidiaryCapital Lease Obligation that is not otherwise permitted under Section 5.2(e)(vii) of this Agreement;
(div) each of the Borrower Issuer and its Subsidiaries may make sales sales, transfers or transfers exchanges of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents Collateral in the ordinary course of business other than to a Receivables SubsidiaryBusiness (in accordance with the Collateral Documents) and that are consistent with past practices;
(ev) the Borrower Issuer and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of businessBusiness, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overdueBusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale);
(fvi) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent Issuer or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Wholly-Owned Subsidiary of the Borrower (Issuer may transfer assets or lease to or acquire or lease assets from the Issuer or any other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if be merged into the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower Issuer or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)Issuer;
(kvii) any Subsidiary the Issuer or its Subsidiaries may sell or exchange specific items of equipment in the ordinary course of Business, so long as the purpose of each such sale or exchange is to acquire (and results within 270 days of such sale or exchange in the acquisition of) replacement items of equipment which are, in the reasonable business judgment of such Person, the functional equivalent of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up item of equipment so sold or dissolveexchanged;
(lviii) the Borrower and Issuer or its Subsidiaries maymay divest, directly transfer, sell assign, or indirectlylease any aircraft, sellaircraft engines, contribute aircraft training devises or aircraft related parts or equipment that are no longer used or useful in the operation of such Person’s business (“Airline Assets”) (for the avoidance of doubt Airline Assets shall include all MD-80 Aircraft, engines, equipment and make tooling), provided that the aggregate fair market value of all assets subject to sales or other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case dispositions pursuant to this sub-clause (viii) shall not exceed $40.0 million in the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactionsaggregate; and
(nix) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% Any sale or disposition of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make equity of a voluntary prepayment of Term Loans pursuant to Guarantor as contemplated in Section 4.310.14.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Spirit Airlines, Inc.), Securities Purchase Agreement (Spirit Airlines, Inc.)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Neither Magellan nor the Borrower will, nor will not, and will not they permit any of its their respective Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent), or enter into any Sale and Leaseback Transactionassets, except that:
(ai) Restricted Payments [Reserved].
(ii) each of Magellan and its Subsidiaries may be made to make sales of inventory in the extent permitted by Section 8.4ordinary course of business;
(biii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of Magellan and its Subsidiaries may sell or otherwise dispose of obsolete, uneconomic or worn-out equipment in the Borrower ordinary course of business;
(v) Magellan and its Subsidiaries may sell assets (other than (A) the capital stock or other equity interests of the Borrower, (B) the capital stock or other equity interests of any other Subsidiary of Magellan unless all of the capital stock and other equity interests of such other Subsidiary then owned by Magellan and its Subsidiaries are sold in a sale permitted by this clause (v) or (C) all or substantially all of the assets of Magellan and its Subsidiaries taken as a whole), so long as (a) no Default or Event of Default then exists or would result therefrom, (b) each such sale is in an arm’s-length transaction and Magellan or the respective Subsidiary receives at least fair market value (as determined in good faith by Magellan or such Subsidiary, as the case may be) and (c) the consideration received by Magellan or such Subsidiary consists of at least 75% cash and is paid at the time of the closing of such sale;
(vi) each of Magellan and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(v));
(dvii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower Magellan and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any financing transaction or bulk sale or financing of receivables)sale;
(fviii) the Borrower each of Magellan and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent business of Magellan or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)its Subsidiaries;
(gix) any Subsidiary of Magellan may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, Magellan, the Borrower (other than or a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving entitycorporation of any such transfer, merger, dissolution or liquidation, (yii) with in all other cases, Magellan or into a Subsidiary Guarantor is the surviving corporation of any one such merger, dissolution or more Wholly-Owned Subsidiaries liquidation and (iii) in the case of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary or Subsidiaries of Magellan, such consideration shall be permitted to be paid at such time only to the surviving entity or extent that it could otherwise have been paid pursuant to (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary and Magellan shall be required to satisfy the provisions of) Section 9.05(xi), 9.05(xiv) or 9.05(xv), as applicable;
(x) any Foreign Subsidiary of Magellan may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Foreign Subsidiary of Magellan so long as (i) in the case of any such transfer, merger, dissolution or liquidation involving a Wholly-Owned Foreign Subsidiary;
(h) , a Wholly-Owned Foreign Subsidiary of Magellan is the Borrower and its Subsidiaries may sell, transfer or otherwise dispose surviving corporation of any asset in connection with any Sale such merger, dissolution or liquidation, and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(iii) in any Fiscal Year, the Borrower or any Subsidiary may dispose case of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year transaction pursuant to this clause (i) plus the aggregate net book value which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary of all the assets then proposed Magellan, such consideration shall be permitted to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with paid at such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, time only to the extent that less than all of the net proceeds of any such disposition are used it could otherwise have been paid pursuant to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) (and Magellan shall be disregarded for purposes of calculations pursuant required to this satisfy the provisions of) Section 8.3(i9.05(xi), 9.05(xiv) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertyor 9.05(xv), as applicable;
(jxi) the Borrower or any other Subsidiary of Magellan may merge with any other Person in order to effect an Investment permitted by Section 9.05; provided, that (x) if such merger involves the Borrower (i) the Borrower shall be the continuing or surviving Person or, in the case of a merger where the Borrower is not the continuing or surviving Person, the Person formed by or surviving any such merger shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”) and (ii) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (y) if such merger involves a Subsidiary Guarantor (and does not involve the Borrower), the continuing or surviving entity shall be a Subsidiary Guarantor and (z) in all cases, a Wholly-Owned Subsidiary shall be the continuing or surviving entity; and
(A) any Subsidiary of Magellan (other than the Borrower) that has no assets or liabilities (other than immaterial assets or liabilities) may sellbe dissolved or liquidated and (B) any Subsidiary of Magellan that is not a Credit Party may merge with and into, leaseor be dissolved or liquidated into, or transfer or otherwise dispose of any or all of its assets to to, a Subsidiary of Magellan that is not a Credit Party so long as (i) in the Borrower case of any such transfer, merger, dissolution or any other liquidation involving a Wholly-Owned Subsidiary, a Wholly-Owned Subsidiary of Magellan is the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) surviving entity of any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower such transaction and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment in the case of Term Loans any such transaction pursuant to which any consideration is paid to a Person that is neither Magellan nor a Wholly-Owned Subsidiary thereof, such consideration shall be permitted to be paid at such time only to the extent that it could otherwise have been paid pursuant to (and Magellan shall be required to satisfy the provisions of) Section 4.39.05(xi), 9.05(xiv) or 9.05(xv), as applicable.
Appears in 2 contracts
Samples: Credit Agreement (Magellan Health Inc), Credit Agreement (Magellan Health Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Parent and the Company will not, and will not permit any of its the Company’s Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter merge or consolidate into or with any transaction of merger or consolidationPerson, or convey, sell, lease or otherwise dispose of any of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale and Leaseback Transactionsale-leaseback transactions, except or purchase or otherwise acquire an Acquired Entity or Business; except, that:
(a) Restricted Payments each of the Company and its Subsidiaries may be made to sell inventory in the extent permitted by Section 8.4ordinary course of business;
(b) each of the Company and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(c) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary10.05;
(d) each of the Borrower Company and its Subsidiaries may make sales sell assets (including by way of merger or transfers consolidation or in connection with sale-leaseback transactions) so long as (i) no Default or Event of inventoryDefault has occurred and is continuing or would result therefrom, Cash(ii) the Company or the respective Subsidiary receives at least Fair Market Value as determined in good faith by the Company, (iii) with respect to any such transaction in which the purchase price is in excess of $3,000,000, the consideration received by the Company or such Subsidiary consists of at least 75% cash or Cash Equivalents paid at the time of the closing of such sale; provided, however, that for the purposes of this clause (iii), (A) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that is secured by Liens that are subordinated to the Liens securing the Obligations or that are owed to the Company or any Subsidiary) of the Company or any Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or the notes thereto) that are assumed by the transferee of any such assets and Foreign for which the Company and/or its applicable Subsidiary have been validly released by all relevant creditors in writing, (B) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such disposition, (C) any securities received by the Company or any Subsidiary from such transferee that are converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable disposition and (D) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries in such sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (D) that is at such time outstanding, not to exceed $3,750,000 at the ordinary course time of business the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, and (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02; provided, that no capital stock or other Equity Interests of any Subsidiary shall be sold pursuant to this clause (d), unless (A) all of the capital stock or other Equity Interests of such Subsidiary are sold in accordance with this clause (d) or (B) such sale is a sale of less than 100% of the capital stock or other Equity Interests of an Excluded Subsidiary; provided, that the aggregate Fair Market Value of all such sales of capital stock or other Equity Interests pursuant to a Receivables Subsidiarythis clause (B) does not exceed 2.5% of Consolidated Total Assets of the Company and its Subsidiaries as of the date of any such sale;
(e) each of the Borrower Company and its Subsidiaries may lease (as lessee), sublease (as sublessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 10.04(d)); provided, that Parent and its Subsidiaries may not exclusively license any of their intellectual property;
(f) each of the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)transaction;
(g) any Subsidiary each of the Borrower Company and its Subsidiaries may grant licenses, sublicenses, leases or subleases (including with respect to intellectual property, to the extent such license, sublicense, lease or sublease is non-exclusive) to other than a Receivables Subsidiary) may be merged or consolidated (x) Persons in the ordinary course of business not materially interfering with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries conduct of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation business of the Company or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiaryits Subsidiaries;
(h) the Borrower and its Subsidiaries Company or any Subsidiary of the Company may sellconvey, transfer sell or otherwise dispose transfer all or any part of its business, properties and assets to any asset Borrower, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in connection with any Sale the assets so transferred shall remain in full force and Leaseback Transaction involving Indebtednesseffect (including, Capitalized Lease Obligations as the case may be, as same may be replaced by the transferee Borrower) and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain or an Operating Financing Lease otherwise permitted hereunderrenew said perfected status have been taken;
(i) in any Fiscal Year, the Borrower or any Subsidiary of the Company may dispose of merge or consolidate with and into, or be dissolved or liquidated into, any of its assets (including in connection with Sale and Leaseback Transactions not involving IndebtednessBorrower, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause so long as (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds case of any such disposition are used merger, consolidation, dissolution or liquidation involving the Company, the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Borrower, a Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (iii) all actions required to acquire such other property, then dispositions create or maintain perfected Liens in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes respect of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed assets required to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertyCollateral have been taken;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)[reserved];
(k) any Subsidiary each of the Borrower (other than a Receivables Subsidiary) Company and its Subsidiaries may voluntarily liquidateliquidate or otherwise dispose of Cash Equivalents, wind-up in each case for cash or dissolveCash Equivalents;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary Liens may sell and make other transfers of Receivables Facility Assets be granted to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitizationextent permitted by Section 10.01;
(m) Foreign any involuntary loss, damage or destruction of property and the disposition of the assets so damaged or destroyed shall be permitted;
(n) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property shall be permitted;
(o) the lapse, abandonment or cancellation of registered or pending patents, trademarks and other intellectual property of the Company and its Subsidiaries shall be permitted in the reasonable business judgment of the Company or such Subsidiary;
(p) any Subsidiary of the Company that is not a Credit Party may enter into Foreign Factoring Transactionsbe merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Subsidiary of the Company that is not a Credit Party, so long as any security interests required to be granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents or Section 9.12 in the Equity Interests of such Subsidiary shall remain in full force and effect, or as the case may be, be granted, and perfected and enforceable and all actions required to maintain or create said perfected status have been taken;
(q) Dividends may be paid to the extent permitted by Section 10.03;
(r) the discount of Inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable may be made, in each case, consistent with past practices prior to the Effective Date;
(s) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings may be made; and
(nt) the Borrower Parent may merge or consolidate with and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75into, or be dissolved or liquidated into, any direct or indirect parent of Parent (“New Parent”) so long as (i) as a result of such merger, consolidation, liquidation or dissolution, New Parent shall directly own 100% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); Equity Interests of the Company and (ii) repay Senior Notes concurrently with such merger, New Parent signs a Joinder Agreement (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans and pursuant to which New Parent agrees to become “Parent” hereunder and subject to all of the rights and obligations of Parent hereunder) along with such other security documents as may be reasonably requested by the Agents or the Required Lenders, and otherwise complies with Section 4.39.12; provided, that, for the avoidance of doubt, concurrent with such merger, consolidation or liquidation, all actions required to give the Collateral Agent a perfected security interest in the Equity Interests of the Company shall have been taken, including, without limitation, that New Parent has delivered to the Collateral Agent certificates, together with undated powers (or other documents of transfer acceptable to the Collateral Agent) endorsed in blank by New Parent, representing the Equity Interests of the Company. For the avoidance of doubt, such transaction shall not be deemed a “Change of Control”. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale, transfer or disposition of any Collateral, or any Collateral is sold, transferred or disposed of as permitted by this Section 10.02 (other than to a Credit Party), such Collateral shall be sold, transferred or disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent are hereby authorized and directed to take any actions reasonably requested by the Borrowers in order to effect or evidence the foregoing; provided, that the Company has provided to the Administrative Agent and the Collateral Agent a certificate executed by an Authorized Officer of the Company certifying that the applicable sale, transfer or disposition is permitted by this Section 10.02 (and the Lenders hereby authorize and direct the Administrative Agent and the Collateral Agent to conclusively rely on such certificate in performing their obligations under this paragraph).
Appears in 2 contracts
Samples: Abl Credit Agreement (J.Jill, Inc.), Abl Credit Agreement (J.Jill, Inc.)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, goods and Leaseback Transactionservices in the ordinary course of business) of any Person, except that:
(a) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted (other than Capital Expenditures constituting an acquisition) in an amount not to exceed $8,000,000 after the date hereof in accordance with the capital expenditures budget delivered to the extent permitted by Section 8.4Lenders prior to the date hereof or the Approved DIP Budget;
(b) Investments the Borrower and its Subsidiaries may be made to sell inventory in the extent permitted by Section 8.7ordinary course of business;
(c) each the Borrower and its Subsidiaries may liquidate or otherwise dispose of obsolete, expired, worn-out, excess or redundant property in the ordinary course of business;
(d) Permitted Investments may be made;
(e) the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 6.03(b)(iii));
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(ef) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fg) the Borrower and its Subsidiaries may license its patentsgrant non-exclusive licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee conduct of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary business of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower any of its Subsidiaries, in each case so long as no such grant otherwise affects the Borrower is Collateral Agent’s security interest in the surviving entity, (y) with asset or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiaryproperty subject thereto;
(h) the Borrower and its Subsidiaries may sell, transfer liquidate or otherwise dispose of any asset Cash Equivalents in connection with any Sale and Leaseback Transaction involving Indebtednessthe ordinary course of business, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunderin each case for cash at Fair Market Value;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value may make dispositions resulting from any taking under power of all the assets then proposed to be disposed of does not exceed 12.5% eminent domain or by condemnation or similar proceeding of, any property or asset of the Consolidated Net Tangible Assets Borrower or its Subsidiaries to the extent such taking or condemnation could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
(j) Dividends may be paid to the extent permitted by Section 6.01;
(k) the Borrower and its Subsidiaries as may dispose of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of property and assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all such property and assets were the subject of a casualty or of condemnation proceedings upon the occurrence of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolverelated Recovery Event;
(l) the Borrower and its Subsidiaries maysale of Accounts arising from sales of tobacco, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case which Accounts are sold pursuant to the Receivables Documents under a Permitted Accounts Receivables SecuritizationExisting Securitization Facilities or substantially similar factoring arrangements without recourse;
(m) Foreign the Borrower and its Subsidiaries may enter into Foreign Factoring Transactionscancel or abandon intellectual property rights which are, in the reasonable business judgment of the Borrower or such Subsidiary, no longer material to, or no longer used or useful in the business of the Borrower or such Subsidiary;
(n) the dissolution, liquidation or winding up of a Subsidiary (other than a Guarantor) of the Borrower, if the Borrower determines in good faith that such a dissolution, liquidation or winding up is in the best interests of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders; and
(no) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less Corporate Restructuring Transaction and transactions listed on Schedule 6.04. To the extent the Required Lenders waive the provisions of this Section 6.04 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.04 (other than 75% to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Net Sale Proceeds therefrom are used within 90 days Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to (i) repay Senior Secured Notes (2010)take any actions deemed appropriate in order to effect and/or evidence the foregoing; (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make provided, however, that the Administrative Agent’s Lien shall attach to the proceeds of any such sale. In connection with a voluntary prepayment of Term Loans termination or release pursuant to Section 4.3this Section, the Administrative Agent and the Collateral Agent shall promptly execute and deliver to the applicable Loan Party, at the Borrower’s expense, all documents that the applicable Loan Party shall reasonably request to evidence such termination or release, as applicable.
Appears in 2 contracts
Samples: Credit Agreement (Pyxus International, Inc.), Restructuring Support Agreement (Pyxus International, Inc.)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Company will not, not and will not permit any of its Subsidiaries to, and the Delaware Sub will not, wind up, liquidate or dissolve any of their respective affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)their respective property, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business or reinvestments in assets of any Person (or agree to do any of the foregoing at any future time), except that:
(ai) Restricted Payments Capital Expenditures by the Company and its Subsidiaries shall be permitted to the extent they are made in the ordinary course of business;
(ii) each of the Company and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any property which, in the reasonable judgment of such Person, is obsolete, worn out or otherwise no longer useful in the conduct of such Person’s business and (y) sell, lease or otherwise dispose of any other property; pr
(iii) vided that the aggregate net cash proceeds of all assets subject to sales or other dispositions pursuant to this sub-clause (ii)(y) shall not exceed $25,000 in the aggregate for any four consecutive fiscal quarters of the Company;
(iv) investments may be made to the extent permitted by Section 8.410.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(cv) each of the Borrower Company and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 10.04 (v));
(dvi) each of the Borrower Company and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarythat are consistent with past practices;
(evii) the Borrower Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale);
(fviii) the Borrower disposition of Cash Equivalents and other investments to the extent permitted under Section 10.05(ii); and
(ix) the Company and its Subsidiaries may license its patentssell non-core assets; provided that the aggregate amount of such sales shall not exceed $25,000 in any fiscal year of the Company, trade secrets, know-how and other intellectual property relating the Company shall receive consideration equal to the manufacture fair market value (as reasonably determined by the board of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee directors of the Administrative Agent without Company or the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition senior management thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3sold.
Appears in 2 contracts
Samples: Purchase Agreement (Particle Drilling Technologies Inc/Nv), Purchase Agreement (Particle Drilling Technologies Inc/Nv)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings ------------------------------------------------------- will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments each of the Borrower and the other Subsidiaries of Holdings may in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, provided that (x) the aggregate Net Sale Proceeds of all assets subject to such sales or other dispositions pursuant to this clause (i) shall not exceed $2,500,000 in any fiscal year of Holdings and (y) no single asset having Net Sale Proceeds greater than $500,000 shall be sold or disposed of pursuant to this clause (i) without the prior written consent of the Required Banks;
(ii) each of the Borrower and the other Subsidiaries of Holdings may sell, lease or otherwise dispose of materials, equipment and other assets in the ordinary course of business, provided that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (ii) shall not exceed $1,000,000 in any fiscal year of Holdings;
(iii) investments may be made to the extent permitted by Section 8.49.06;
(b) Investments may be made to the extent permitted by Section 8.7;
(civ) each of the Borrower Holdings and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to the extent permitted by Section 9.04 (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation except to the extent permitted by Section 9.05(vi));
(dv) each of the Borrower and its the other Subsidiaries of Holdings may (x) make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than and (y) in addition to a Receivables Subsidiary;
(e) the Borrower sales permitted under Section 9.02(ii), make sales of equipment and related software to its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising customers in the ordinary course of business (x) pursuant to the specific wagering systems equipment contracts or similar contracts to which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)Person is a party;
(fvi) Capital Expenditures by the Borrower and the other Subsidiaries of Holdings shall be permitted to the extent not in violation of Section 9.08;
(vii) with the prior written consent of the Required Banks, each of Holdings and its Subsidiaries may license acquire the assets constituting all or any part of the business of any Person or the capital stock of any Person (including any such acquisition by way of merger or consolidation); and
(viii) Holdings and its patents, trade secrets, know-how Subsidiaries may liquidate any Inactive Subsidiary or merge any Inactive Subsidiary with and into another Subsidiary of Holdings so long as such other intellectual property relating Subsidiary is the surviving corporation of such merger. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the manufacture sale of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent any Collateral, or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses Collateral is sold as permitted by this Section 8.3(f)9.02, hereafter “Permitted Technology Licenses”);
(g) any Subsidiary such Collateral shall be sold free and clear of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into Liens created by the Borrower so long as Security Documents, and the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Credit Agreement (Autotote Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter merge or consolidate into or with any transaction of merger or consolidationPerson, or convey, sell, lease or otherwise dispose of any of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale and Leaseback Transactionsale-leaseback transactions, or purchase or otherwise acquire an Acquired Entity or Business, except that:
(a) Restricted Payments each of the Borrower and its Subsidiaries may be made to sell inventory in the extent permitted by Section 8.4ordinary course of business;
(b) each of the Borrower and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(c) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary9.05;
(d) each of the Borrower and its Subsidiaries may make sales sell assets (including by way of merger or transfers consolidation or in connection with sale-leaseback transactions) so long as (i) no Default or Event of inventoryDefault has occurred and is continuing or would result therefrom, Cash(ii) the Borrower or the respective Subsidiary receives at least Fair Market Value as determined in good faith by the Borrower, (iii) with respect to any such transaction in which the purchase price is in excess of $3,450,000, the consideration received by the Borrower or such Subsidiary consists of at least 75% cash or Cash Equivalents paid at the time of the closing of such sale; provided, however, that for the purposes of this clause (iii), (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that is secured by Liens that are subordinated to the Liens securing the Obligations or that are owed to the Borrower or any Subsidiary) of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or the notes thereto) that are assumed by the transferee of any such assets and Foreign for which the Borrower and/or its applicable Subsidiary have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such disposition, (y) any securities received by the Borrower or any Subsidiary from such transferee that are converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable disposition and (z) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at such time outstanding, not to exceed $4,312,500 at the ordinary course time of business the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, and (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(c); provided, that no capital stock or other Equity Interests of any Subsidiary shall be sold pursuant to this clause (d), unless (1) all of the capital stock or other Equity Interests of such Subsidiary are sold in accordance with this clause (d) or (2) such sale is a sale of less than 100% of the capital stock or other Equity Interests of an Excluded Subsidiary; provided, that the aggregate Fair Market Value of all such sales of capital stock or other Equity Interests pursuant to a Receivables Subsidiarythis clause (2) does not exceed 2.9% of Consolidated Total Assets of the Borrower and its Subsidiaries as of the date of any such sale;
(e) each of the Borrower and its Subsidiaries may lease (as lessee), sublease (as sublessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(d)); provided, that Holdings and its Subsidiaries may not exclusively license any of their intellectual property;
(f) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fg) each of the Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and other leases or subleases (including with respect to intellectual property relating property, to the manufacture extent such license, sublicense, lease or sublease is non-exclusive) to other Persons in the ordinary course of chemical products and by-products (business not materially interfering with the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee conduct of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary business of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiaryits Subsidiaries;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sellconvey, lease, transfer sell or otherwise dispose of transfer all or any or all part of its business, properties and assets to any Qualified Credit Party, so long as any security interests granted to the Borrower or any other Wholly-Owned Subsidiary Collateral Agent for the benefit of the Borrower Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect (other than including, as the case may be, as same may be replaced by the transferee Qualified Credit Party) and perfected (Ito at least the same extent as in effect immediately prior to such transfer) from the Borrower and all actions required to maintain or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)renew said perfected status have been taken;
(ki) any Subsidiary of the Borrower may merge or consolidate with and into, or be dissolved or liquidated into, any Qualified Credit Party, so long as (other than i) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Receivables SubsidiaryCredit Party, a Credit Party is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (iii) may voluntarily liquidate, wind-up all actions required to create or dissolvemaintain perfected Liens in respect of assets required to be Collateral have been taken;
(lj) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization[reserved];
(mk) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) each of the Borrower and its Subsidiaries may consummate liquidate or otherwise dispose of Cash Equivalents, in each case for cash or Cash Equivalents;
(l) Liens may be granted to the US Commodity Business Sale provided extent permitted by Section 9.01;
(m) any involuntary loss, damage or destruction of property and the disposition of the assets so damaged or destroyed shall be permitted;
(n) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property shall be permitted;
(o) the lapse, abandonment or cancellation of registered or pending patents, trademarks and other intellectual property of the Borrower and its Subsidiaries shall be permitted in the reasonable business judgment of the Borrower or such Subsidiary;
(p) any Subsidiary of the Borrower that is not less than 75a Credit Party may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Subsidiary of the Borrower that is not a Credit Party, so long as any security interests required to be granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents or Section 8.12 in the Equity Interests of such Subsidiary shall remain in full force and effect, or as the case may be, be granted, and perfected and enforceable and all actions required to maintain or create said perfected status have been taken;
(q) Dividends may be paid to the extent permitted by Section 9.03;
(r) the discount of Inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable may be made, in each case, consistent with past practices prior to the Closing Date;
(s) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings may be made; and
(t) Holdings may merge or consolidate with and into, or be dissolved or liquidated into, any direct or indirect parent of Holdings (“Parent”) so long as (i) as a result of such merger, consolidation, liquidation or dissolution, Parent shall directly own 100% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); Equity Interests of Borrower and (ii) repay Senior Notes concurrently with such merger, Parent signs a joinder to this Credit Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans and pursuant to which Parent agrees to become “Holdings” hereunder and subject to all of the rights and obligations of Holdings hereunder), along with such other security documents as may be reasonably requested by the Agents or the Required Lenders, and otherwise complies with Section 4.38.12; provided, that, for the avoidance of doubt, concurrent with such merger, consolidation or liquidation, all actions required to give the Collateral Agent a perfected security interest in the Equity Interests of the Borrower shall have been taken, including, without limitation, that Parent has delivered to the Collateral Agent certificates, together with undated powers (or other documents of transfer acceptable to the Collateral Agent) endorsed in blank by Parent, representing the Equity Interests of the Borrower. For the avoidance of doubt, such transaction shall not be deemed a “Change of Control”. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale, transfer or disposition of any Collateral, or any Collateral is sold, transferred or disposed of as permitted by this Section 9.02 (other than to a Credit Party), such Collateral shall be sold, transferred or disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent are hereby authorized and directed to take any actions reasonably requested by the Borrower in order to effect or evidence the foregoing; provided, that the Borrower has provided to the Administrative Agent and the Collateral Agent a certificate executed by an Authorized Officer of the Borrower certifying that the applicable sale, transfer or disposition is permitted by this Section 9.02 (and the Lenders hereby authorize and direct the Administrative Agent and the Collateral Agent to conclusively rely on such certificate in performing their obligations under this paragraph).
Appears in 1 contract
Samples: Subordinated Term Loan Credit Agreement (J.Jill, Inc.)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent (unless the effectiveness of such agreement relates to an action otherwise permitted by this Section 9.02, or to the extent that the respective action is conditional upon not otherwise permitted by this Section 9.02 (and the Loans will not be repaid in full, and all Commitments terminated, at the time of the consummation of the respective action), such agreement expressly provides that the consent of the Administrative Agentrequisite percentage of Lenders hereunder is required to be obtained in connection therewith), or enter into any Sale and Leaseback Transaction), except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) each of the Borrower and its Subsidiaries may make sales of inventory and license intellectual property in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell obsolete, uneconomic or worn-out equipment or materials in the ordinary course of business;
(iv) the Borrower may sell the InfoSpace Stock in accordance with Section 8.16;
(v) each of the Borrower and its Subsidiaries may sell other assets (other than the capital stock of any Subsidiary Guarantor), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) the total consideration received by the Borrower or such Subsidiary is at least 75% cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(e) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $5,000,000 in any fiscal year of the Borrower;
(vi) Investments may be made to the extent permitted by Section 8.79.05;
(cvii) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in (so long as any such lease does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(iv));
(dviii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fix) each of the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and grant leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)its Subsidiaries;
(gx) any Subsidiary of the Borrower (other than a Receivables Subsidiaryi) may be merged or consolidated (x) with or into the Borrower or liquidated so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries corporation of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation or receives the surviving assets of such Subsidiary shall be a Wholly-Owned Subsidiaryupon such liquidation and (ii) may transfer its assets to the Borrower or to any Subsidiary Guarantor;
(hxi) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer be merged or otherwise dispose consolidated with or into any other Subsidiary of any or all of its assets to the Borrower or liquidated so long as (i) in the case of any other (x) such merger or consolidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger or consolidation or (y) such liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor receives the assets of such Subsidiary upon such liquidation and (ii) in the case of any (x) such merger or consolidation involving a Wholly-Owned Subsidiary of the Borrower Borrower, in addition to the requirements of preceding clause (i)(x), a Wholly-Owned Subsidiary is the surviving -62- 64 corporation of such merger or consolidation or (y) such liquidation, in addition to the requirements of preceding clause (i)(y), a Wholly-Owned Subsidiary receives the assets of such Subsidiary upon such liquidation;
(xii) Permitted Acquisitions may be made to the extent permitted by Section 8.18; and
(xiii) the Acquisition shall be permitted. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than (I) from to the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiarythereof);
(k) any Subsidiary , such Collateral shall be sold free and clear of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidateLiens created by the Security Documents, wind-up or dissolve;
(l) and the Borrower Administrative Agent and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets the Collateral Agent shall be authorized to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets take any actions deemed appropriate in order to effect the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale- leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures (including payments in respect of Capitalized Lease Obligations) by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by Section 8.4not in violation of Sections 9.01(vi)(B) and 9.07;
(bii) Holdings and its Subsidiaries may in the ordinary course of business, (x) sell or otherwise dispose of equipment and materials which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business and (y) sell or exchange other items of equipment and materials so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment or materials which are the functional equivalent of the item of equipment or material so sold or exchanged and is at least of comparable value and quality;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of the Borrower Holdings and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation unless permitted by Section 9.01(vi));
(dv) each of the Borrower Holdings and its Subsidiaries may make sales or transfers other dispositions of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiaryand consistent with past practice;
(evi) Holdings and its Subsidiaries may sell Hotel Properties, Senior Living Care Facilities and other assets (including the capital stock or other equity interests (including by way of merger) of the Person or Persons owning such Hotel Properties, Senior Living Care Facilities or other assets, but specifically excluding the capital stock of Hospitality, the Borrower or any Subsidiary Guarantor unless all of the capital stock or other equity interests of a Subsidiary Guarantor is sold) so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is at fair market value (as determined in good faith by Holdings or such Subsidiary, as the case may be), (iii) the consideration received by Holdings or such Subsidiary is either (a) at least 75% cash and is received at the time of the consummation of such sale, and with the balance of such consideration to be in the form of promissory notes, real estate assets (including related FF&E) and/or equity interests of Persons owning real estate assets, or (b) a combination of cash and Permitted Like-Kind Exchange Property, (iv) the aggregate amount of all sales made pursuant to preceding clause (a) of this Section 9.02(vi) shall not exceed $250,000,000 in any fiscal year of Holdings and (v) and the aggregate fair market value of all assets sold in exchange for Permitted Like-Kind Exchange Properties shall not exceed (A) $500,000,000 in any twelve month period beginning after the Effective Date and ending prior to July 31, 2000 or (B) $250,000,000 for any twelve month period thereafter;
(vii) on and after the REIT Conversion Date, the Borrower and its Subsidiaries may sell the FF&E at a Hotel Property to a Non-Controlled Entity so long as (i) the Borrower shall have reasonably determined that each such sale is necessary in order to avoid the characterization for tax purposes of any portion of the rent payable under the related Operating Lease as rent not attributable to real property (allowing reasonable margins with respect to applicable limitations), (ii) such FF&E is leased by such Non-Controlled Entity to the Approved Lessee under the related Operating Lease pursuant to an FF&E lease containing market terms for similar FF&E and with provisions protecting the interests of the owner of the applicable Hotel Property in a form reasonably acceptable to the Administrative Agent, (iii) the related Approved Lessee shall have assigned its interest (as lessee) in such FF&E lease to the Borrower or discount, in each case without recourse its Subsidiary owning the related Hotel Property as security for such Approved Lessee's obligations under the Operating Lease and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary (or any successor Approved Lessee of such Hotel Property) shall have the right to acquire the interests of the tenant under such FF&E lease (if it is then in effect) upon a termination of the related Operating Lease, (iv) the purchase price paid for such FF&E shall be equal to at least the fair market value of such FF&E (with a purchase price equal to the book value thereof being deemed to meet this standard) (and the consideration paid shall be in the form of cash and/or a promissory note), and (v) no more than (A) $200,000,000 of such FF&E is sold at the time of the REIT Conversion and (B) without duplication of any FF&E sold pursuant to preceding clause (A), $100,000,000 of such FF&E is otherwise sold in any fiscal year of the Borrower less (in the case of this clause (B)) the aggregate amount of FF&E otherwise purchased by Non-Controlled Entities during such fiscal year from Persons other than the Borrower or a Subsidiary thereof for use at a Hotel Property of the Borrower or a Subsidiary thereof;
(viii) the Borrower and its Wholly-Owned Subsidiaries and, prior to the REIT Conversion Date, Wholly-Owned Subsidiaries which are Non-Borrower Subsidiaries, may reasonably determine are difficult acquire Hotel Properties (other than pursuant to collect but only the Blackstone Acquisition) and/or, prior to the REIT Conversion Date, Senior Living Care Facilities (or all of the capital stock or other equity interests of the Person or Persons owning such Hotel Properties and/or Senior Living Care Facilities (including by way of merger)) so long as (i) no Specified Default or Event of Default then exists or would result therefrom, (ii) based on calculations made by Holdings and/or the Borrower on a Pro Forma Basis after giving effect to --- ----- such acquisition and as if such acquisition had occurred on the first day of the respective Calculation Period, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective acquisition under, the financial covenants contained in connection Sections 9.08 through 9.12, inclusive, (iii) in the case of an acquisition of a Hotel Property, such Hotel Property is a Full Service Hotel, provided that limited service Hotel Properties also may be acquired pursuant to this Section 9.02(viii) so long as on a Pro Forma Basis the portion of Consolidated EBITDA attributed to such limited service Hotels, when added to the portion of Consolidated EBITDA attributed to all other limited service Hotels of Holdings and its Subsidiaries, does not exceed 7% of the Consolidated EBITDA for the most recently ended Test Period, and (iv) in the case of any acquisition made pursuant to this Section 9.02(viii) with an Acquisition Purchase Price of $100,000,000 or more, Holdings or the Borrower shall have delivered to the Administrative Agent an officer's certificate executed by an Authorized Financial Officer of Holdings or the Borrower, certifying to the best of such officer's knowledge, compliance with the compromise or collection thereof consistent with customary industry practice requirements of preceding clauses (i) through (iii) and not as part of any bulk sale or financing of receivablescontaining the calculations required by the preceding clauses (ii) and (iii);
(fix) the Borrower and its Subsidiaries may license its patentsand, trade secrets, know-how and other intellectual property relating prior to the manufacture REIT Conversion Date, the Non-Borrower Subsidiaries, may acquire high quality real estate (or the equity interests of chemical products a Person owning such real estate (including by way of merger)) consistent with the quality of the Borrower's and by-products its Subsidiaries' existing portfolio of Hotel Properties (other than pursuant to the “Technology”Blackstone Acquisition) provided that so long as (i) no Specified Default or Event of Default then exists or would result therefrom, (ii) based on calculations made by Holdings and/or the Borrower on a Pro Forma Basis --- ----- after giving effect to such license acquisition and as if such acquisition had occurred on the first day of the respective Calculation Period, no Default or Event of Default will exist under, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 8.01(a) or (b), as the case may be) prior to the date of the respective acquisition under, the financial covenants contained in Sections 9.08 through 9.12, inclusive, (iii) the aggregate amount of all acquisitions made pursuant to this Section 9.02(ix), when added to the aggregate amount of all Investments made pursuant to Section 9.05(xi), does not exceed $1,500,000,000, and (iv) in the case of any such acquisition with an Acquisition Purchase Price of $100,000,000 or more, Holdings or the Borrower shall be assignable have delivered to the Administrative Agent an officer's certificate executed by an Authorized Financial Officer of Holdings or any assignee the Borrower, certifying to the best of such officer's knowledge, compliance with the Administrative Agent without the consent requirements of the licensee and no such license shall preceding clauses (i) transfer ownership of such Technology to any other Person or through (iii) and containing the calculations required by the preceding clauses (ii) require the Borrower to pay any fees for any such use and (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”iii);
(gx) the Borrower or one or more Wholly-Owned Subsidiaries thereof may consummate the Blackstone Acquisition so long as no Default or Event of Default then exists or would result therefrom;
(xi) any Subsidiary of the Borrower (other than a Receivables SubsidiarySpecified Subsidiary that has outstanding Permitted Non-Recourse Indebtedness) may be merged or consolidated (x) with or and into the Borrower or any Subsidiary Guarantor so long as (i) in the case of any merger involving the Borrower, the Borrower is the surviving entityPerson, (yii) with or into in the case of any one or more merger involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving Person, (iii) in the case of any merger involving a non-Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporationthe only consideration paid to third parties in connection therewith is (I) cash, Huntsman Headquarters Corporation (II) the assumption of Indebtedness, (III) equity interests in the surviving Person so long as such Person is not a Subsidiary Guarantor and/or (IV) after the REIT Conversion Date, equity in Host REIT or IRICOP Units, provided that, in the case of a merger described in preceding clause (iii); provided, however, (x) in the event that the surviving Person is not a Wholly-Owned Subsidiary or Subsidiaries of the Borrower, any such cash payment shall be treated as an Investment made (and shall reduce the aggregate amount of Investments permitted to be made) under Section 9.05(xi) and such cash payment may only be made to the extent that an Investment may be made at such time under such Section 9.05(xi) and (y) in the event that the surviving entity Person is (or (zbecomes) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned SubsidiarySubsidiary of the Borrower, such transaction shall only be permitted if the Borrower could have consummated such transaction pursuant to Section 9.02(viii) (and with the Borrower being required to satisfy the provisions of such Section 9.02(viii) in connection therewith), and (iv) at least 5 Business Days prior written notice of any such merger is given by the Borrower to the Administrative Agent;
(hxii) any Subsidiary of Holdings (other than the Borrower or a Specified Subsidiary that has outstanding Permitted Non-Recourse Indebtedness) that is not a Subsidiary Guarantor may be merged with and into any other Subsidiary of Holdings (other than the Borrower or a Specified Subsidiary that has outstanding Permitted Non-Recourse Indebtedness) that is not a Subsidiary Guarantor so long as in the case of any merger involving a non-Wholly-Owned Subsidiary of Holdings, the only consideration paid to third parties in connection therewith is (I) cash, (II) the assumption of Indebtedness, (III) equity interests in the surviving Person so long as such Person is not a Subsidiary Guarantor and/or (IV) after the REIT Conversion Date, equity in Host REIT or OP Units, provided that, (x) in the event that the surviving Person is not a Wholly-Owned Subsidiary of the Borrower, any such cash payment shall be treated as an Investment made (and shall reduce the aggregate amount of Investments permitted to be made) under Section 9.05(xi) and such cash payment may only be made to the extent that an Investment may be made at such time under such Section 9.05(xi) and (y) in the event that the surviving Person is (or becomes) a Wholly-Owned Subsidiary of the Borrower, such transaction shall only be permitted if the Borrower could have consummated such transaction pursuant to Section 9.02(viii) (and with the Borrower being required to satisfy the provisions of such Section 9.02(viii) in connection therewith);
(xiii) on or after the REIT Conversion Date, the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection enter into Operating Leases with any Sale an Approved Lessee and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or the Non-Controlled Entities may enter into FF&E leases with an Operating Financing Lease otherwise permitted hereunderApproved Lessee;
(ixiv) the CRHC Merger shall be permitted in any Fiscal Yearaccordance with Section 4.13;
(xv) each of the transactions that constitute the REIT Transaction shall be permitted in accordance with the terms of this Agreement;
(xvi) from and after the REIT Conversion Date, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in shall have the right to sell inventory, fixed asset supplies and working capital receivables relating to a Hotel Property to the Approved Lessee under the Operating Lease relating to such Fiscal Year pursuant Hotel Property for a purchase price equal to this clause no less than the fair market value thereof (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount purchase price equal to the net proceeds book value thereof being deemed to meet this standard) (and the consideration therefor shall be in the form of such disposition are used by cash and/or a promissory note), so long as the Borrower or related Subsidiary is granted a Subsidiary Lien upon such inventory, fixed asset supplies and working capital receivables pursuant to acquire other property used the related Operating Lease as security for the obligations of the Approved Lessee thereunder; and
(xvii) sales of Senior Living Care Facilities (and related assets) pursuant to Section 8.20 shall be permitted. To the extent the Required Banks or to be used in all of the business referred to in Section 8.9 and (B) Banks, as the Borrower or such Subsidiary has complied with case may be, waive the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property 9.02 with respect to the acquisition sale of such other property;
(j) the Borrower any Pledge and Security Agreement Collateral, or any Subsidiary Pledge and Security Agreement Collateral is sold or otherwise disposed of as permitted by this Section 9.02, such Pledge and Security Agreement Collateral shall be sold or otherwise disposed of free and clear of the Borrower may sellLiens created by the Pledge and Security Agreement, lease, transfer or otherwise dispose of and the Administrative Agent and the Collateral Agent shall be authorized to take any or all of its assets actions deemed appropriate in order to effect the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will shall not, and will shall not permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve any of their affairs or its affairs, (ii) enter into any transaction of merger or consolidation, or (iii) convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time time) all or any part of its property or assets, including without the Administrative Agent’s prior written consent unless the effectiveness limitation assets consisting of such agreement is conditional upon the consent capital stock of the Administrative Agent)a Subsidiary thereof or stock equivalents thereof, or (iv) enter into any Sale partnerships, joint ventures or sale-leaseback transactions, or (v) purchase, lease or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions by the Borrower or any of its Subsidiaries of inventory, materials and Leaseback Transactionequipment in the ordinary course of business, it being understood that Product Acquisition Expenditures shall not be considered within the scope of this exception) of any Person, or make or maintain any loan, extension of credit or advance to any Person, or own or purchase or otherwise acquire any capital stock or equity interests or obligations of or other securities of any Person, or otherwise make any other investment or capital contribution in any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash Equivalents, except thatthat the following shall be permitted:
(aA) Restricted Payments may be made Capital Expenditures by the Borrower and its Subsidiaries to the extent permitted by pursuant to Section 8.46.07;
(bB) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real sell obsolete, worn-out or personal property uneconomic equipment in the ordinary course of business other than to a Receivables Subsidiaryso long as the amount of Net Sale Proceeds from such sales in any one fiscal year does not exceed $200,000 in the aggregate and such proceeds are applied in accordance with the term 2 of Section 2.02(c);
(dC) each the Borrower and its Subsidiaries may enter into operating leases in the ordinary course of business;
(D) the Borrower and its Subsidiaries may make sales and maintain investments (1) consisting of receivables owing to any of them (including, without limitation, through the indirect acquisition thereof through a security interest), if created or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (2) in cash and Cash Equivalents; (3) in Interest Rate Contracts permitted under Section 6.04(iii), (4) consisting of loans and advances in the ordinary course of business and consistent with past practices to their respective employees for moving, travel and emergency expenses and other than similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to a Receivables Subsidiaryany write-downs or write-offs of such loans and advances) shall not exceed $100,000, (5) consisting of purchases or acquisitions of securities of trade creditors or customers received in any plan of reorganization or similar arrangement on the bankruptcy or insolvency of such trade creditors or customers or received in settlement of delinquent obligations of, and other disputes with, suppliers arising in the ordinary course of business, (6) consisting of obligations, so long as the aggregate outstanding amount does not exceed $250,000, of one or more officers or other employees of the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Common Stock so long as no cash is paid by the Borrower or any of its Subsidiaries in connection with the acquisition of any such obligations and (7) consisting of additional investments or loans in an aggregate amount after the Funding Date not to exceed $500,000;
(eE) the Borrower and its Subsidiaries may sell inventory in the ordinary course of business;
(F) the Loan Parties may consummate the Transaction in accordance with the Documents;
(G) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and recourse, accounts receivables arising in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)thereof;
(fH) Dividends may be paid to the extent permitted by Section 6.03;
(I) the Borrower may transfer assets (including without limitation cash, and its which transfer may be effected by way of asset transfer, loan or equity contribution) to Wholly-Owned Domestic Subsidiaries may license its patents, trade secrets, know-how which are Subordinated Guarantors and other intellectual property relating to Wholly Owned Foreign Subsidiaries; provided. that the manufacture aggregate fair market value of chemical products and by-products all such assets so transferred (determined in good faith by the “Technology”) provided that such license shall be assignable to the Administrative Agent Board of Directors or any assignee senior management of the Administrative Agent without the consent of the licensee and no Borrower) to all such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Foreign Subsidiaries does not exceed $200,000;
(gJ) any Foreign Subsidiary may be merged with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary so long as such Wholly-Owned Foreign Subsidiary is the surviving corporation of any such merger, dissolution or liquidation;
(K) the assets of any Foreign Subsidiary may be transferred to the Borrower or any of its Wholly-Owned Domestic Subsidiaries which is a Subordinated Guarantor, and any Foreign Subsidiary may be merged with and into, or be dissolved or liquidated into, the Borrower or any of its Wholly-Owned Domestic Subsidiaries which is a Subordinated Guarantor so long as the Borrower or such Wholly-Owned Domestic Subsidiary is the surviving corporation of any such merger, dissolution or liquidation;
(L) any Domestic Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly-Owned Domestic Subsidiary of the Borrower which is a Subordinated Guarantor;
(other than a Receivables SubsidiaryM) any Wholly-Owned Domestic Subsidiary of the Borrower may be merged or consolidated (x) merge with or and into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries corporation of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiarymerger;
(hN) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Domestic Subsidiary of the Borrower may sellmerge with and into, leaseor be dissolved or liquidated into, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Domestic Subsidiary of the Borrower (other than (I) from the Borrower or which is a Subordinated Guarantor so long as such Wholly-Owned Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidateis the surviving corporation of such merger, wind-up dissolution or dissolve;liquidation; and
(lO) each of the Borrower and its Subsidiaries may, directly in the ordinary course of business, license as licensee or indirectlylicensor patents, selltrademarks, contribute copyrights and make other transfers of Receivables Facility Assets know-how to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets or from third Persons, so long as (a) to the Issuerextent such licensing involves Product Acquisition Expenditures, such Product Acquisition Expenditures are permitted under Section 6.18 and (b) any such license by the Borrower or any of its Subsidiaries in each case its capacity as licensor is permitted to be assigned pursuant to the Receivables Credit Documents under (to the extent that a Permitted Accounts Receivables Securitization;
(msecurity interest in such patents, trademarks, copyrights and know-how is granted thereunder) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) and does not otherwise prohibit the granting of a Lien by the Borrower and or any of its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3the Credit Documents in the intellectual property covered by such license.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Thane International Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by Section 8.49.07;
(bii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete, unusable or worn out;
(iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor), so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arms-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) at least 80% of the total consideration received by the Borrower or such Subsidiary is cash and paid at the time of the closing of such sale and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $400,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) at least 80% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(d) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $10,000,000 in any fiscal year of the Borrower;
(v) Investments may be made to the extent permitted by Section 8.79.05;
(cvi) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04(iv));
(dvii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(eviii) the Transaction shall be permitted;
(ix) the Borrower and each of its Subsidiaries may acquire assets or the capital stock of any Person, including by merger, so long as the survivor of such merger is, or becomes at such time, a Subsidiary Guarantor (any such acquisition, a "Permitted Acquisition" and the date of consummation of any such acquisition, an "Acquisition Date"), provided that (i) the sum of the aggregate cash and Cash Equivalents plus the aggregate market value of all other consideration paid by the Borrower and its Subsidiaries (including any Indebtedness assumed by the Borrower or any Subsidiary) in connection with (x) any one such Permitted Acquisition shall not exceed $40,000,000 and (y) all such Permitted Acquisitions shall not exceed $60,000,000; (ii) no Default or Event of Default exists at the time of such acquisition or will exist as a result thereof; (iii) in respect of each Permitted Acquisition (or of all Permitted Acquisitions closing on the same date), the Borrower shall have delivered to the Agents an officer's certificate executed by an authorized officer of the Borrower demonstrating that on a Pro Forma Basis determined as if such Permitted Acquisition (or Acquisitions) had been consummated (and any Indebtedness to be incurred to finance such Permitted Acquisition had been incurred) on the first day of the last Test Period of the Borrower then last ended, the Borrower would have been in compliance with Sections 9.08 through 9.10, inclusive, for such Test Period; and (iv) the principal place of business of, and at least 80% of the assets of, each such Acquired Business shall be located in the United States;
(x) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to this clause (x) had not occurred);
(xi) any Foreign Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Foreign Subsidiary so long as in the case of any such merger or consolidation, the Borrower or any Foreign Subsidiary is the surviving corporation of any such transaction; and
(xii) each of the Borrower and its Subsidiaries may sell or discount, Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which good faith by the Borrower or such Subsidiary Subsidiary, as the case may reasonably determine are difficult be). To the extent the Required Banks waive the provisions of this Section 9.02 with respect to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part sale of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patentsCollateral, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses Collateral is sold as permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower 9.02 (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to thereof), such Collateral shall be used in the business referred to in Section 8.9 sold free and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all clear of the net proceeds of any such disposition are used to acquire such other propertyLiens created by the Security Documents, then dispositions in an amount equal to and the net proceeds used to acquire such other property) Administrative Agent and the Collateral Agent shall be disregarded for purposes of calculations pursuant authorized to this Section 8.3(i) (and shall otherwise be take any actions deemed appropriate in order to be permitted under this Section 8.3) from and after effect the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their affairs or enter into any transaction of merger or consolidation, 178 or convey, sell, lease or otherwise dispose of any of its properties or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent), or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments may be made to the extent permitted by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary;
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate 179 net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 1 contract
Samples: Credit Agreement
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may be made to the extent permitted Capital Expenditures by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property shall be permitted to the extent not in the ordinary course violation of business other than to a Receivables SubsidiarySection 9.07;
(dii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(eiii) the Borrower and its Subsidiaries may sell or otherwise transfer obsolete or worn-out equipment or materials in the ordinary course of business;
(iv) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduein an aggregate principal amount not to exceed $5,000,000 in any fiscal year of the Borrower, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fv) the Borrower and its Subsidiaries may license its patentssell assets in the ordinary course of business in an aggregate amount not to exceed $1,000,000 per sale or series of related sales, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that no more than $5,000,000 of such license shall sales may be assignable made pursuant to the Administrative Agent or this clause (v) in any assignee fiscal year of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Borrower;
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(hvi) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its sell other assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if other than the aggregate net book value (at capital stock of a Subsidiary unless all of the time capital stock of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year Subsidiary is so sold pursuant to this clause (vi)) so long as (i) plus the aggregate net book value no Default or no Event of all the assets Default then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets exists or would result therefrom, (ii) each such sale is in an arm’s-length transaction and the Borrower and its Subsidiaries or the respective Subsidiary receives at least fair market value (as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds determined in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used good faith by the Borrower or a Subsidiary to acquire other property used or to such Subsidiary, as the case may be, provided, that if the fair market value is greater than $1,000,000 such value shall be used in as determined by the business referred to in Section 8.9 and (B) board of directors of the Borrower or such Subsidiary has complied with and evidenced by a resolution of such board of directors set forth in an officer’s certificate delivered to the provisions Administrative Agent within 15 Business Days of such resolution), (iii) the total consideration received by the Borrower or such Subsidiary is at least 80% cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 7.11 with respect 3.03(b) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to such property, then such dispositions clauses (or, v) and (vi) of this Section 9.02 shall not exceed $5,000,000 in any fiscal year of the Borrower;
(vii) Investments may be made to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this permitted by Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property9.05;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(lviii) the Borrower and its Subsidiaries may, directly may lease (as lessee) or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to license (as licensee) real or personal property (so long as any such lease does not create a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets Capitalized Lease Obligation except to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitizationextent permitted by Section 9.04(iv));
(mix) Foreign Permitted Acquisitions may be made in accordance with Section 8.14;
(x) the Borrower and its Subsidiaries may enter into Foreign Factoring Transactions; andgrant leases, subleases, licenses or sublicenses to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(nxi) the Borrower and its Subsidiaries may consummate sale and leaseback transactions of fixed or capital assets, in each case so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale and leaseback transaction is in an arm’s-length transaction and the US Commodity Business Sale provided that not less than 75% Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) the total consideration received by the Borrower or such Subsidiary in connection with each such sale and leaseback transaction is in the form of cash and is paid at the time of the closing thereof, (iv) the consummation thereof shall occur within 90 days after the Borrower or such Subsidiary acquires or completes the construction of such fixed or capital asset and (v) the Net Sale Proceeds therefrom are used within 90 days applied and/or reinvested as (and to the extent) required by Section 4.02(a)(iv);
(xii) any Subsidiary of the Borrower may be merged, consolidated, dissolved or liquidated with or into the Borrower or any other Credit Party so long as the Borrower or such other Credit Party is the surviving corporation of such merger, consolidation, dissolution or liquidation;
(xiii) any Domestic Subsidiary of the Borrower may be merged, consolidated, dissolved or liquidated with or into any other Domestic Subsidiary of the Borrower so long as (i) repay Senior Secured Notes (2010); in the case of any such merger, consolidation, dissolution or liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger, consolidation, dissolution or liquidation, and (ii) repay Senior Notes in the case of any such merger, consolidation, dissolution or liquidation involving a Wholly-Owned Domestic Subsidiary of the Borrower, in addition to the requirements of preceding clause (2012i), a Wholly-Owned Domestic Subsidiary is the surviving corporation of such merger, consolidation, dissolution or liquidation;
(xiv) any Foreign Subsidiary of the Borrower may be merged, consolidated, dissolved or liquidated with or into any other Foreign Subsidiary of the Borrower so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger, consolidation, dissolution or liquidation, and (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Wholly-Owned Foreign Subsidiary of the Borrower, in addition to the requirements of the preceding clause (i), a Wholly-Owned Foreign Subsidiary is the surviving corporation of such merger, consolidation, dissolution or liquidation;
(xv) the Borrower may transfer assets to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor and any Subsidiary of the Borrower may transfer assets to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor, in each case so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer); and
(iiixvi) repay Receivables Facility Attributed Indebtedness and/or Dividends may be paid as, and to the extent, permitted by Section 9.03. To the extent the Required Lenders or all of the Lenders, as the case may be, waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (iv) make other than to the Borrower or a voluntary prepayment Subsidiary thereof), such Collateral shall be sold free and clear of Term Loans pursuant the Liens created by the respective Security Documents and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.7;
(bii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.79.5;
(civ) the Borrower and its Subsidiaries may sell assets (other than the capital stock or other equity interests of any Subsidiary), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) the consideration received by the Borrower or such Subsidiary consists solely of cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied as required by Section 4.2(d) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $500,000 in any fiscal year of the Borrower without the consent of the Required Lenders;
(v) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course extent permitted by Section 9.4(ii)) and the aggregate rentals thereunder do not exceed $5,000,000 for leases of business automobiles and $1,000,000 for leases of other than to a Receivables Subsidiaryequipment;
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of businessbusiness and for cash at fair market value (as determined by the Borrower in good faith), Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing transaction, provided that the aggregate amount of receivables)such sales shall not exceed $500,000 in any fiscal year of the Borrower;
(fvii) each of the Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and its Subsidiaries, in each case so long as no such license shall (i) transfer ownership of such Technology to any other Person grant otherwise affects the Collateral Agent's security interest in the asset or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)property subject thereto;
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(hviii) the Borrower and its the International Subsidiaries may sell, transfer or otherwise dispose of any asset enter the transaction described in Section 13.17 on the conditions contained therein; and
(ix) in connection with any Sale Acquisition permitted pursuant to Section 9.5(vi) and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Yearif the result of such Acquisition is a Subsidiary, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has shall have complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.39.
Appears in 1 contract
Samples: Credit Agreement (First Horizon Pharmaceutical Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) all or any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials, supplies and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale except that the following transactions (and Leaseback Transaction, except thatagreements related thereto) shall be permitted:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made to the extent permitted (although any Capital Expenditures constituting a Permitted Acquisition shall be governed by clause (xii) of this Section 8.49.02);
(bii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell uneconomic, obsolete or worn-out equipment, materials or other assets in the ordinary course of business, provided that the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $500,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor unless all of the capital stock of such Subsidiary Guarantor is sold), so long as (u) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) the total consideration received by the Borrower or such Subsidiary is at least 80% cash, which cash is paid at the time of the closing of such sale, PROVIDED that the amount of any liabilities (as shown on the Borrower's or such Subsidiary's most recent balance sheet) of the Borrower or any Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this clause (x), (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(e) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iv) (including, for this purpose, the amount of any assumed liabilities referred to in clause (x) above) shall not exceed $1,000,000 in any fiscal year of the Borrower;
(v) Investments may be made to the extent permitted by Section 8.79.05;
(cvi) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in (so long as any such lease does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(iv);
(dvii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)thereof;
(fviii) the Acquisition and all payments required to be made by the Acquisition Documents (as in effect on the Restatement Effective Date) shall be permitted in accordance with the terms of the Acquisition Documents;
(ix) each of the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and grant leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)its Subsidiaries;
(gx) any Subsidiary of the Borrower (other than a Receivables Subsidiaryx) may be merged merged, consolidated or consolidated (x) liquidated with or into the Borrower so long as the Borrower is the surviving entitycorporation of such merger, consolidation or liquidation and (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower all or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)Borrower;
(kxi) any Subsidiary of the Borrower (other than a Receivables Subsidiaryx) may voluntarily liquidatebe merged, windconsolidated or liquidated with or into any other Subsidiary of the Borrower so long as (i) in the case of any such merger, consolidation or liquidation involving a Subsidiary Guarantor, the Subsidiary Guarantor is the surviving corporation of such merger, consolidation or liquidation and (ii) in addition to the requirements or preceding clause (i), in the case of any such merger, consolidation or liquidation involving a Wholly-up Owned Subsidiary of the Borrower, the Wholly-Owned Subsidiary is the surviving corporation of such merger, consolidation or dissolveliquidation, and (y) may transfer all or any portion of its assets to any Subsidiary Guarantor;
(lxii) each of the Borrower and the Subsidiary Guarantors may acquire all or substantially all of the assets of any Person (or all or substantially all of the assets of a product line or division of any Person) or 100% of the capital stock of any Person (any such acquisition permitted by this clause (xii), a "Permitted Acquisition"), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each of the representations and warranties contained in Section 7 shall be true and correct in all material respects both before and after giving effect to such Permitted Acquisition, (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 9.01 or 9.04, as the case may be, (iv) the only consideration paid by the Borrower or any Subsidiary Guarantor in connection with any Permitted Acquisition consists solely of cash, common stock of Holdings and/or Qualified Preferred Stock of Holdings, (v) at least 10 Business Days prior to the consummation of any Permitted Acquisition, the Borrower shall have delivered to the Agent and each of the Banks a certificate of the Borrower's Chief Financial Officer certifying (and showing the calculations therefor in reasonable detail) that Holding's and its Subsidiaries would have been in compliance with the financial covenants set forth in Sections 9.07, 9.08 and 9.09 for the Test Period then most recently ended prior to the date of the consummation of such Permitted Acquisition, in each case with such financial covenants to be determined on a PRO FORMA basis as if such Permitted Acquisition had been consummated on the first day of such Test Period (and assuming that any Indebtedness incurred, issued or assumed in connection therewith had been incurred, issued or assumed on the first day of, and had remained outstanding throughout, such Test Period), (vi) the sum of the aggregate consideration paid in connection with all Permitted Acquisitions effected after the Restatement Effective Date (including, without limitation, any earn-out, non-compete or deferred compensation arrangements (in each case as determined in good faith by the Board of Directors of Holdings), the aggregate principal amount of any Indebtedness assumed or issued in connection therewith and the fair market value of any capital stock of Holdings issued in connection therewith (as determined in good faith by the Board of Directors of Holdings)) does not exceed $5,000,000 and (vii) the Total Unutilized Available Revolving Loan Commitment after giving effect to any Permitted Acquisition is at least $5,000,000 and the Borrowing Base at such time, giving pro forma effect to such Permitted Acquisition (based on the Borrowing Base Certificate then being delivered), would permit the Borrower to incur at least $5,000,000 of additional Revolving Loans;
(xiii) each of the Borrower and its Subsidiaries may, directly in the ordinary course of business, license, as licensor or indirectlylicensee, sellpatents, contribute trademarks, copyrights and make other transfers know-how to third Persons and to one another, so long as any such license by the Borrower or its Subsidiaries in its capacity as licensor does not prohibit the granting of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers Lien by the Borrower or any of Receivables Facility Assets to the Issuer, in each case its Subsidiaries pursuant to the Receivables Documents under a Permitted Accounts Receivables SecuritizationSecurity Agreement in such license or in the intellectual property covered thereby;
(mxiv) Foreign each of Holdings and its Subsidiaries may enter into Foreign Factoring Transactions; andsell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by Holdings or such Subsidiary, as the case may be);
(nxv) each of Holdings and its Subsidiaries may pay Dividends to the extent permitted by Section 9.03;
(xvi) Recovery Events shall be permitted;
(xvii) each of the Borrower and its Subsidiaries may consummate enter into sale and leaseback transactions with respect to their equipment and Real Property acquired after the US Commodity Business Sale provided that not less than 75% Restatement Effective Date, so long as (u) no Default or Event of Default then exists or would result therefrom, (v) each such sale and leaseback transaction is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (w) the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (x) the Net Sale Proceeds therefrom are used within 90 days applied and/or reinvested as (and to the extent) required by Section 3.03(c), (iy) repay Senior Secured Notes the aggregate amount of proceeds received from all sale and leaseback transactions pursuant to this clause (2010xvii) shall not exceed $500,000 in any fiscal year of the Borrower and (z) to the extent that any such sale and leaseback transaction results in a Capitalized Lease Obligation, such Capitalized Lease Obligation is permitted under Section 9.04(iv); and
(iixviii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment so long as no Default or Event of Term Loans Default then exists or would result therefrom, the Holdings Merger shall be permitted pursuant to documentation in form and substance reasonably satisfactory to the Agent and the Borrower will give the Agent prompt written notice and evidence of the occurrence thereof. To the extent the Required Banks waive the provisions of this Section 4.39.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the release of such Collateral from the Liens created by the Security Documents.
Appears in 1 contract
Samples: Credit Agreement (Power Ten)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials, equipment and intangible assets in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made to the extent permitted by Section 8.4permitted;
(bii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of the Borrower and its Subsidiaries may sell or otherwise dispose of obsolete, uneconomic or worn-out assets in the ordinary course of business;
(v) the Borrower and its Subsidiaries may sell assets (other than the capital stock or other equity interests of any Subsidiary unless all of the capital stock and other equity interests of such Subsidiary then owned by the Borrower and its Subsidiaries are sold in a sale permitted by this clause (v)), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) the consideration received by the Borrower or such Subsidiary consists of at least 75% cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(e) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $25,000,000 in any fiscal year of Holdings;
(vi) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(v));
(dvii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable and related promissory notes arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any financing transaction or bulk sale or financing of receivables)sale;
(fviii) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower and its Subsidiaries taken as a whole, in each case so long as no such grant otherwise restricts any Credit Party's right to grant a lien on such assets or property in favor of the Collaterxx Xxxxx;
(ix) any Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving corporation of any such merger, dissolution or liquidation, (ii) in all other cases, a Wholly-Owned Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, (iii) in all cases after the occurrence of a Trigger Event, the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation), and (iv) in the case of any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary of the Borrower, such consideration shall be permitted to be paid at such time only to the extent that it could otherwise have been paid pursuant to (and the Borrower shall be required to satisfy the provisions of) Section 8.15 or 9.05(xiii), as applicable;
(x) any Foreign Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower so long as (i) in the case of any such merger, dissolution or liquidation, a Wholly-Owned Foreign Subsidiary of the Borrower is the surviving corporation of any such merger, dissolution or liquidation, and (ii) in the case of any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary of the Borrower, such consideration shall be permitted to be paid at such time only to the extent that it could otherwise have been paid pursuant to (and Holdings and the Borrower shall be required to satisfy the provisions of) Section 8.15 or 9.05(xiii), as applicable;
(xi) the Borrower and its Subsidiaries may license sell or exchange specific items of equipment in the ordinary course of business, so long as the purpose of each sale or exchange is to acquire (and results within 45 days of such sale or exchange in the acquisition of) replacement items of equipment which are, in the reasonable business judgment of the Borrower and its patentsSubsidiaries, trade secrets, know-how and other intellectual property relating the functional equivalent of the item of equipment so sold or exchanged; and
(xii) Permitted Acquisitions may be made to the manufacture extent permitted by Section 8.15. To the extent the Required Lenders waive the provisions of chemical products and by-products (the “Technology”) provided that such license shall be assignable this Section 9.02 with respect to the Administrative Agent sale of any Collateral, or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses Collateral is sold as permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower 9.02 (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower Holdings or a Subsidiary to acquire other property used or to thereof), such Collateral shall be used in the business referred to in Section 8.9 sold free and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all clear of the net proceeds of any such disposition are used to acquire such other propertyLiens created by the Security Documents, then dispositions in an amount equal to and the net proceeds used to acquire such other property) Administrative Agent and the Collateral Agent shall be disregarded for purposes of calculations pursuant authorized to this Section 8.3(i) (and shall otherwise be take any actions deemed appropriate in order to be permitted under this Section 8.3) from and after effect the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Credit Agreement (Fairchild Semiconductor International Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment and Capital Expenditures in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments each of the Borrower and its Subsidiaries may be made to make sales of inventory in the extent permitted by Section 8.4ordinary course of business or sales of goods that have become worn-out, obsolete or damaged and as a result are unsuitable for use in connection with the business of the Borrower and its Subsidiaries;
(bii) Investments may be made to the extent permitted by Section 8.79.05, and Dividends may be paid to the extent permitted by Section 9.03;
(ciii) the Borrower and its Subsidiaries may sell assets (other than Equity Interests of any Subsidiary or Unrestricted Subsidiary that is less than all of the Equity Interests in such Subsidiary or Unrestricted Subsidiary that are owned by the Borrower and its Subsidiaries) or make Permitted Asset Exchanges in accordance with the definition thereof, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale (and each such Permitted Asset Exchange) is in an arm’s-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value therefor, (x) other than in the case of a Permitted Asset Exchange, at least 75% of the Total Consideration received by the Borrower or such Subsidiary consists of cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(e) and (z) after giving effect to each such sale or Permitted Asset Exchange (as the case may be), the sum of (I) aggregate amount of the proceeds (or, in the case of a Permitted Asset Exchange, the Fair Market Value of the assets sold or otherwise transferred by the Borrower or the respective Subsidiary pursuant to such Permitted Asset Exchange) received from each such sale or such Permitted Asset Exchange (as the case may be), (II) the aggregate amount of all proceeds received from all other assets previously sold pursuant to this clause (iv) and (III) the aggregate Fair Market Value of all assets sold or otherwise transferred by the Borrower or the respective Subsidiary pursuant to Permitted Asset Exchanges effected pursuant to this clause (iv), shall not exceed 10% of Consolidated Net Tangible Assets as of the fiscal quarter or year (as the case may be) of the Borrower ended most recently prior to such sale or Permitted Asset Exchange for which financial statements shall have been delivered pursuant to Section 8.01(a) or (b), as the case may be;
(iv) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(iii));
(dv) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale financing transaction;
(vi) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or financing subleases to other Persons not materially interfering with the conduct of receivablesthe business of the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto;
(vii) any Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving corporation of such merger, dissolution or liquidation, (ii) in all other cases, a Wholly-Owned Domestic Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, and (iii) in all cases, the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(fviii) Permitted Acquisitions may be made to the extent permitted by Section 8.15;
(ix) sales, transfers and other dispositions of Receivables and Related Assets pursuant to Permitted Receivables Securitizations permitted by Section 9.04(viii);
(x) sales, transfers and dispositions (and purchases and acquisitions) by the Borrower or any Wholly-Owned Domestic Subsidiary Guarantor to (or from, as the case may be) the Borrower or a Wholly-Owned Domestic Subsidiary Guarantor shall be permitted;
(xi) the Los Angeles Assets, or any portion thereof, may at any time or from time to time be sold, so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm’s-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value therefor, (y) in the case of any sale of Real Property constituting all or a portion of the Los Angeles Assets, at least 75% of the Total Consideration received by the Borrower and its Subsidiaries consists of cash paid at the time of the closing of such sale or disposition and (z) the Net Sale Proceeds from any Asset Sale of Los Angeles Assets (but only if constituting an Asset Sale) are applied to prepay Loans to the extent required by Section 4.02(e) or reinvested in accordance with the provisions thereof;
(xii) the sale, transfer or other disposition (including pursuant to a Permitted Asset Exchange made in accordance with the definition thereof) of all or substantially all the Chicago Assets in a single transaction or series of related transactions shall be permitted, so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm’s-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value therefor, (y) other than in the case of a Permitted Asset Exchange, at least 75% of the Total Consideration received by the Borrower and its Subsidiaries consists of cash paid at the time of the closing of such sale or disposition and (z) the Net Sale Proceeds therefrom are applied to prepay Loans to the extent required by Section 4.02(e) or reinvested in accordance with the provisions thereof; and
(xiii) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how make a sale of any fixed or capital assets that is made for cash consideration in an amount not less than the cost of such fixed or capital asset and is consummated within 270 days after the Borrower or such Subsidiary acquires or completes the construction of such fixed or capital asset and thereafter rent or lease such property or other intellectual property relating that it intends to use for substantially the manufacture of chemical products and by-products (same purpose as the “Technology”) sold property; provided that such license shall be assignable to the Administrative Agent or any assignee sum of the Administrative Agent without the consent aggregate amount of the licensee Attributable Debt in respect of all such sale and no such license shall (i) transfer ownership leaseback transactions of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose shall not exceed $5,000,000 at any time outstanding. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of any asset in connection with any Sale and Leaseback Transaction involving IndebtednessCollateral, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets Collateral is sold as permitted by this Section 9.02 (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant other than to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to thereof), such Collateral shall be used in the business referred to in Section 8.9 sold free and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all clear of the net proceeds of any such disposition are used to acquire such other propertyLiens created by the Security Documents, then dispositions in an amount equal to and the net proceeds used to acquire such other property) Administrative Agent and the Collateral Agent shall be disregarded for purposes of calculations pursuant authorized to this Section 8.3(i) (and shall otherwise be take any actions deemed appropriate in order to be permitted under this Section 8.3) from and after effect the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Credit Agreement (RCN Corp /De/)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Company will not, and will not permit any of its Subsidiaries Subsidiary to, wind up, liquidate or dissolve any of their affairs its affairs, or enter into any transaction of merger or consolidation, or conveysell or otherwise dispose of all or any part of its property or assets (other than inventory, sellworn-out, unuseful or obsolete equipment or excess equipment in the ordinary course of business) or purchase, lease or otherwise dispose acquire all or any part of the property or assets of any Person (other than purchases or other acquisitions of its properties inventory, leases, materials and equipment in the ordinary course of business) or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time (without a contingency relating to obtaining any required approval hereunder or the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent or contemporaneous satisfaction of the Administrative AgentObligations), or enter into any Sale and Leaseback Transaction, except thatthat the following shall be permitted:
(a) Restricted Payments may be made to the extent permitted by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.78.6;
(cb) each of the Borrower Company and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 8.2(c));
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(ec) the Borrower Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (xi) which are overdue, or (yii) which the Borrower or such Subsidiary Company may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(d) (i) any Credit Party and/or other Subsidiary may be merged or consolidated with or into, or be liquidated into, a Credit Party (so long as (A) a Credit Party is the surviving corporation, (B) if such merger or consolidation involves a Borrower, a Borrower is the surviving corporation, and (C) no Event of Default results therefrom), (ii) any Subsidiary that is not a Credit Party may be merged or consolidated with or into or be liquidated into, another Subsidiary that is not a Credit Party, (iii) all or any part of the business, properties and assets of a Credit Party or other Subsidiary may be conveyed, leased, sold, licensed or otherwise transferred to a Credit Party so long as no Event of Default arises therefrom under any provision of this Agreement other than this Section 8.3 and (iv) all or any part of the business, properties and assets of a Subsidiary that is not a Credit Party may be conveyed, leased, sold, licensed or otherwise transferred to another Subsidiary that is not a Credit Party;
(e) the Designated Credit Parties may transfer and reacquire accounts receivable and related assets to and from the Receivables Entity pursuant to, and in accordance with the terms of, the Accounts Receivable Facility Documents;
(f) the Borrower Receivables Entity may transfer and its Subsidiaries may license its patents, trade secrets, know-how reacquire accounts receivable and other intellectual property relating related assets (to the manufacture of chemical products extent acquired from Designated Credit Parties as provided in clause (e) above) pursuant to, and by-products (in accordance with the “Technology”) provided that such license shall be assignable to terms of, the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Accounts Receivable Facility Documents;
(g) any Subsidiary of the Borrower may acquire (other than through an unsolicited public offer) assets constituting all or substantially all of a Receivables Subsidiarybusiness, business unit, division or product line of any Person not already a Subsidiary of such Borrower or Capital Stock of any such Person (including any such acquisition by way of merger or consolidation) may be merged to the extent such acquired Person or consolidated the surviving entity of such merger or consolidation is or becomes a Credit Party (x) with or into the Borrower any such acquisition permitted by this clause (g), a "Permitted Acquisition"), so long as the Borrower is the surviving entity(i) no Unmatured Event of Default or Event of Default (including under this Section 8.3) then exists (both before and after giving effect to such Permitted Acquisition), (yii) after giving effect thereto on a pro forma basis for the period (the "Pro Forma Period") of four Fiscal Quarters ending with the Fiscal Quarter for which financial statements have most recently been delivered (or into were required to be delivered) under Section 7.1 (on the basis that (A) any one Indebtedness incurred or more Wholly-Owned Subsidiaries assumed in connection with such Permitted Acquisition was incurred or assumed at the beginning of the Borrower Pro Forma Period, (B) such Indebtedness was repaid from operating cash flow over the Pro Forma Period at the intervals and in the amounts reasonably projected to be paid in respect of such Indebtedness over the 12-month period immediately following such acquisition, (C) if such Indebtedness bears a floating interest rate, such interest shall be paid over the Pro Forma Period at the rate in effect on the date of such acquisition, and (D) all income and expense associated with the assets or entity acquired in connection with such Permitted Acquisition for the most recently ended four Fiscal Quarter period for which such income and expense amounts are available (with good faith estimates thereof being permitted if financial statements indicating such amounts are not available) shall be treated as being earned or incurred by the Company over the Pro Forma Period on a pro forma basis), no Event of Default or Unmatured Event of Default would exist hereunder, (iii) the business acquired pursuant to such Permitted Acquisition is -75- engaged in the pulp and paper industry, (iv) all documentation governing such Permitted Acquisition is reasonably acceptable to Agent, (v) the Company delivers an officer's certificate to Agent certifying as to compliance with the requirements of this clause (g) and containing the calculations required pursuant to clauses (A) through (D) above establishing compliance with the covenants set forth in Article IX, and (vi) any Person acquired in connection with Permitted Acquisition shall have executed and delivered to Agent a Subsidiary Guaranty upon the consummation thereof if such acquired Person is a Material Subsidiary; and
(h) other than an Unrestricted Subsidiarysales or dispositions of assets not otherwise permitted hereunder (whether by merger, Airstar Corporation, Huntsman Headquarters Corporation consolidation or IRIC)otherwise) occurring after the Closing Date which are made for fair market value; provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereofany such sale or disposition, no Event of Default or Unmatured Event of Default exists or would result from therefrom and (ii) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all assets so transferred by the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower Company and its Subsidiaries as together shall not exceed 7.5% of the end of the immediately preceding Consolidated Total Assets in any Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1Year; provided, howeverand provided further, that if (A) concurrently with any disposition in the event the amount of sales and dispositions of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal permitted to the net proceeds of such disposition are used be made by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower Company and its Subsidiaries mayunder this clause (h) in any Fiscal Year is greater than the actual amount of such sales and dispositions under this clause (h) during such Fiscal Year (such excess being referred to herein as the "Rollover Amount"), directly or indirectlythe Rollover Amount may be carried forward and utilized to make sales and dispositions in the next succeeding Fiscal Year, sell, contribute and make other transfers provided that in no event shall the aggregate net book value of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to all assets so transferred by the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower Company and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75together exceed 15% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3Consolidated Total Assets in any two consecutive Fiscal Years.
Appears in 1 contract
Samples: Credit Agreement (Glatfelter P H Co)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower No Credit Agreement Party will, nor will notany Credit Agreement Party permit any of its Subsidiaries to, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by Adience and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07(a), (b) and (c)(i);
(bii) the Borrowers and Adience and its Wholly-Owned Subsidiaries shall be permitted to make Permitted Acquisitions so long as (A) such Permitted Acquisitions are effected in accordance with the requirements of Section 8.16, (B) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for the purpose of this clause (ii) all cash consideration and the fair market value of any non-cash consideration, but excluding any Indebtedness (and any cash proceeds thereof paid as consideration) issued, incurred or assumed in connection with such Permitted Acquisition, but only if outstanding pursuant to clauses (x) and/or (xi) of Section 9.04) by Adience and its Subsidiaries in connection with such Permitted Acquisition shall not exceed the Permitted Acquisition Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition); and (B) with respect to each Permitted Acquisition, no Default or Event of Default is in existence at the time of the consummation of such Permitted Acquisition or would exist after giving effect thereto; (iii) Investments may be made to the extent permitted by Section 8.7;
9.05; (civ) each of the Borrower Adience and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to a Receivables Subsidiary;
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that such lease does not create a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, Obligation except to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this permitted by Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary9.04);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will shall not, and will shall not permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve any of their affairs or its affairs, (ii) enter into any transaction of merger or consolidation, or (iii) convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time time) all or any part of its property or assets, including without the Administrative Agent’s prior written consent unless the effectiveness limitation assets consisting of such agreement is conditional upon the consent capital stock of the Administrative Agent)a Subsidiary thereof or stock equivalents, or (iv) enter into any Sale and Leaseback Transactionpartnerships, joint ventures or sale-leaseback transactions, or (v) purchase, lease or otherwise acquire (in one or a series of related transactions) any part of the property or assets of any Person, or make or maintain any loan, extension of credit or advance to any Person, or own or purchase or otherwise acquire any capital stock or equity interests or obligations of or other securities of any Person, or otherwise make any other investment or capital contribution in any Person, except thatthat the following shall be permitted:
(aA) Restricted Payments may be made to purchases or other acquisitions by the extent permitted by Section 8.4Borrower and its Subsidiaries of inventory, materials and equipment in the ordinary course of business;
(bB) Investments may be made to the extent capital expenditures permitted by Section 8.7the Credit Agreement (as in effect on the date hereof);
(cC) each so long as there shall exist no Default or Event of Default, the Borrower and its Subsidiaries may sell assets so long as the amount of Net Sale Proceeds from such sales in any one fiscal year does not exceed $200,000 in the aggregate and such proceeds are used, or irrevocably committed to be used, to purchase, within 360 days from the date of sale, assets to be used in the business of the Borrower or its Subsidiaries;
(D) the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to a Receivables Subsidiaryso long as such leases are not Capitalized Lease Obligations;
(dE) the Borrower and its Subsidiaries may make and maintain investments (1) consisting of receivables owing to any of them (including, without limitation, through the indirect acquisition thereof through a security interest), if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (2) in cash and Cash Equivalents, (3) in Rate Hedging Agreements entered into pursuant to the requirements of the Credit Agreement (as in effect on the date hereof), (4) consisting of loans and advances in the ordinary course of business and consistent with past practices to their respective employees for moving, travel and emergency expenses and other similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $200,000 and (5) consisting of purchases or acquisitions of securities of trade creditors or customers received in any plan of reorganization or similar arrangement on the bankruptcy or insolvency of such trade creditors or customers or received in settlement of delinquent obligations of, and other disputes with, suppliers arising in the ordinary course of business;
(F) the Borrower and its Subsidiaries may sell inventory in the ordinary course of business;
(G) the Transaction may be consummated in accordance with the Documents;
(H) Dividends may be paid to the extent permitted by Section 6.03;
(I) each of the Borrower and its Subsidiaries may make sales enter into licensing arrangements with respect to Intellectual Property, in accordance with customary past practice of the Borrower or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in such Subsidiary (as the ordinary course of business other than to a Receivables Subsidiarycase may be);
(eJ) the Borrower may make investments consisting of capital contributions in or purchases of the equity of Wholly-Owned Subsidiaries to the extent the aggregate amount of such capital contributions in and equity purchases of (without giving effect to any write-downs or write-offs with respect thereto) all such Wholly-Owned Subsidiaries does not exceed $100,000; provided, however, in the case of Helicon Network Solutions the aggregate amount of such capital contributions and equity purchases (without giving effect to any write-downs or write-offs with respect thereto) shall not exceed $7,000,000;
(K) so long as there shall exist no Default or Event of Default (both before and after giving effect thereto), the sale of ISP Assets so long as such assets are sold for cash and for fair market value and the proceeds from such sale (a) of up to $7,000,000 are first applied to repay all Indebtedness secured by the ISP Assets that was paid as consideration in connection with the purchase of the ISP Assets and, at the Borrower's option, to repay other Existing Indebtedness secured by the ISP Assets and any excess thereof is used to purchase within 180 days of the receipt thereof assets used in the Borrower's cable systems business and/or Helicon Network Solutions and (b) in excess of $7,000,000 are applied in accordance with Section 2.02(c);
(L) so long as there shall exist no Default or Event of Default (both before and after giving effect thereto) the Borrower and its Subsidiaries may sell or discountfor cash for a fair market value of at least $1,200 per subscriber cable assets of up to 800 subscribers during the period beginning on the Initial Funding Date and ending on December 31, in each case without recourse and 1999 so long as the proceeds therefrom are used to purchase within 180 days of receipt thereof assets used in the ordinary course of Borrower's cable systems business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(fM) the Borrower and its Subsidiaries may license its patentsmake consulting payments to Messrs. Xxxxxx Xxxxxx, trade secrets, know-how Xxxxxxx X. Xxxxxx and other intellectual property relating to Xxxxxxx Xxxxxxx as long as the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or aggregate amount thereof does not exceed $150,000 in any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary one fiscal year of the Borrower (other than a Receivables Subsidiary) may be merged and there shall exist no Default or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries Event of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that Default both before and after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;payments; and
(hN) so long as there shall exist no Default or Event of Default (both before and after giving effect thereto) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose swap cable assets of any asset in connection up to 1,000 subscribers for cable assets of other subscribers with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, a fair market value at least equal to the Borrower or any Subsidiary may dispose fair market value of any of its the cable assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of being swapped by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with at any disposition of assets time on or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3Effective Date.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Helicon Capital Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Holdings and the Borrower will not, and will not permit any of its their Subsidiaries to, wind up, liquidate or dissolve any of their affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties or assets (or, with respect to any such a transaction involving all or substantially all of the assets of Holdings or the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s 's prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)) or convey, sell or otherwise dispose of any part of its property or assets, or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments Holdings, the Borrower and its Subsidiaries may be made to consummate the extent permitted by Section 8.4Transaction;
(b) each of the Borrower and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) sell, lease or otherwise dispose of any other assets, provided that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (y) which are not reinvested to acquire assets to be used in such Person's business in the manner described in Section 4.4(c) shall not exceed $2,500,000 in any Fiscal Year of the Borrower;
(c) Investments may be made to the extent permitted by Section 8.7;
(cd) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to a Receivables Subsidiary;
(de) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(ef) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(fg) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “"Technology”") provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f8.3(g), hereafter “"Permitted Foreign Technology Licenses”");
(gh) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC)Borrower; provided, however, that a the Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(hi) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunderhereunder so long as, in the case of a transaction involving operating assets, such transaction occurs within 120 days of the acquisition by the Borrower or any Subsidiary of the asset sold, transferred or otherwise disposed of;
(ij) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year subsequent to the Original Closing Date pursuant to this clause (ij) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.55% of the Consolidated Net Tangible Assets net property, plant and equipment of the Borrower and its Subsidiaries (on a consolidated basis) as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 180 days thereof, substantially all of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) if the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i8.3 (j)) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property time of compliance with Section 7.11 with respect to the acquisition of such other property;
(jk) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or (x) a Domestic Subsidiary to a Foreign Subsidiary or (y) a Foreign Subsidiary party to Foreign Intercompany Loan Documents to a Foreign Subsidiary which is not a party to Foreign Intercompany Loan Documents or (z) a Foreign Subsidiary transferring assets which then serve as direct collateral for a Foreign Intercompany Note to another Foreign Subsidiary unless such assets similarly secure a Foreign Intercompany Note of such Foreign Subsidiary receiving such assets or (II) to a Receivables Subsidiary);
(kl) any Subsidiary of the Borrower (other than UK Holdco 1 and a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(lm) the Borrower and its Subsidiaries may, directly or indirectly, may sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Receivable Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Foreign Subsidiaries may consummate the US Commodity Business Sale provided that not less other than 75% any Foreign Subsidiary which as of the Net Sale Proceeds therefrom are used within 90 days Closing Date or any date thereafter is a party to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant any Foreign Intercompany Loan Document may enter into the Foreign Factoring Transactions in an aggregate amount not to Section 4.3exceed $15,000,000 at any time outstanding.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business) of any Person, except thatthat the following shall be permitted:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may (A) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (B) sell, lease or otherwise dispose of any other assets, provided that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (ii) which are not reinvested to acquire Reinvestment Assets in accordance with Section 4.02(d) shall not exceed $2,000,000 in any Fiscal Year;
(iii) sales of assets the Net Sale Proceeds of which are used to acquire Reinvestment Assets in accordance with Section 4.02(d);
(iv) investments may be made to the extent permitted by Section 8.49.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(cv) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04);
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than and consistent with past practices (including, without limitation, sales or transfers of inventory by the Borrower to a Receivables Subsidiaryits Subsidiaries so long as at fair market value);
(evii) each of the Recapitalization and the Acquisition shall be permitted;
(viii) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (xA) which are overdue, overdue or (yB) which the Borrower or such Subsidiary may reasonably determine are difficult to collect collect, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(fix) transfers of condemned property to the respective governmental authority or agency that have condemned same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement, so long as the proceeds thereof are applied as required by Section 4.02(e);
(x) license or sublicenses by the Borrower and its Subsidiaries may license its patentsof software, trade secrets, know-how trademarks and other intellectual property relating to in the manufacture ordinary course of chemical products business and by-products (which do not materially interfere with the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Subsidiary;
(gxi) the Borrower or any Subsidiary may enter into consignment arrangements (as consignor or as consignee) or similar arrangements for the sale of goods in the ordinary course of business and consistent with the past practices of the Borrower and its Subsidiaries prior to the Restatement Date;
(xii) the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower (may transfer assets to or lease assets to or acquire or lease assets from the Borrower or any other than a Receivables Subsidiary) Domestic Wholly-Owned Subsidiary or any Domestic Wholly-Owned Subsidiary may be merged or consolidated (x) with or into the Borrower so (as long as the Borrower is the surviving entity, (ycorporation of such merger) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Domestic Wholly-Owned Subsidiary of the Borrower, or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Domestic Wholly-Owned Subsidiary;Subsidiary may dissolve (as long as all of the properties and assets of such dissolved Subsidiary are distributed in their entirety to the Borrower or to a Domestic Wholly-Owned Subsidiary of the Borrower); and
(hxiii) so long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may sell, transfer acquire assets or otherwise dispose the capital stock of any asset in connection with Person (any Sale and Leaseback Transaction involving Indebtednesssuch acquisition permitted by this clause (xiii), Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
a "Permitted Acquisition"), provided, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in any Fiscal Yearthe business permitted pursuant to Section 9.13(a), (ii) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes as Wholly-Owned Subsidiary of the Borrower or any Subsidiary may dispose of any of its assets (including in connection B) such Person is merged with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by into the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from with the Borrower or a Domestic such Wholly-Owned Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiarybeing the surviving corporation of such merger);
(k) , and in any Subsidiary case, all of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidateprovisions of Section 9.14 have been complied with in respect of such Person, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed any Liens or Indebtedness and/or assumed or issued in connection with such acquisition are otherwise permitted under Section 9.01 or 9.04, as the case may be, and (iv) make the aggregate amount of consideration paid by the Borrower or any other Person in connection with all such Permitted Acquisitions shall not exceed $12,500,000. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to Holdings or a voluntary prepayment Subsidiary of Term Loans pursuant Holdings) shall be sold free and clear of the Liens created by the Security Documents, and the Agent and Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent), or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments The Borrower and its Subsidiaries may be made to consummate the extent permitted by Section 8.4Transaction;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to a Receivables Subsidiary;
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a the Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.55% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such dispositionthereof, all or a portion of an amount equal to substantially all of the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business businesses referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i)) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property time of compliance with Section 7.11 with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or (x) a Domestic Subsidiary to a Foreign Subsidiary or (y) a Foreign Subsidiary party to Foreign Intercompany Loan Documents to a Foreign Subsidiary which is not a party to Foreign Intercompany Loan Documents or (z) a Foreign Subsidiary transferring assets which then serve as direct collateral for a Foreign Intercompany Note to another Foreign Subsidiary unless such assets similarly secure a Foreign Intercompany Note of such Foreign Subsidiary receiving such assets or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than UK Holdco 1 and a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Receivable Securitization;; and
(m) Foreign Subsidiaries other than any Foreign Subsidiary which as of the Closing Date or any date thereafter is a party to any Foreign Intercompany Loan Document may enter into the Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that Transactions in an aggregate amount not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3exceed $25,000,000 at any time outstanding.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Each of ------------------------------------------------------- the Parent and the Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by Section 8.49.08;
(bii) each of the Parent and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any equipment which, in the reasonable judgment of such Person, is obsolete, worn out or otherwise no longer used or useful in the conduct of such Person's business and (y) sell, lease or otherwise dispose of any other assets, provided that each such sale, lease or disposition pursuant to -------- preceding clause (y) shall be for Fair Market Value and at least 75% of the consideration for all assets sold, leased or otherwise disposed of pursuant to this clause (y) in any Fiscal Year shall be in the form of cash, and provided further, that the aggregate Net Sale Proceeds of all assets ---------------- subject to sales or other dispositions pursuant to preceding clause (y) (for purposes of this proviso only, excluding asset sales or other dispositions where the Net Sale Proceeds therefrom are less than $250,000) shall not exceed $10,000,000 in the aggregate in any Fiscal Year;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of the Borrower Parent and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04);
(dv) each of the Borrower Parent and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(evi) the Borrower Parent and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(fvii) transfers of condemned property to the respective governmental authority or agency that has condemned same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement, shall be permitted;
(viii) licenses, sublicenses or transfers by the Parent and its Subsidiaries of software, trademarks and other intellectual property which (x) do not materially interfere with the business of the Borrower, the Borrower and its Subsidiaries may license taken as a whole or the Parent and its patents, trade secrets, know-how Subsidiaries taken as a whole and other intellectual property relating (y) could not reasonably be expected to the manufacture of chemical products and by-products (the “Technology”) provided that such license have a Material Adverse Effect shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)permitted;
(gix) any Subsidiary of the Borrower Transaction (other than a Receivables Subsidiaryincluding Stock Repurchases made in accordance with Section 9.03) may shall be merged or consolidated permitted;
(x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with no Default or into any one or more Wholly-Owned Subsidiaries Event of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (Default exists at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition respective transfer of assets or within 360 days of receipt of proceeds in connection with such dispositionimmediately after giving effect thereto, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j1) the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower which is a Guarantor and is not a Segregated Subsidiary at such time may transfer assets or lease to or acquire or lease assets from the Borrower or any other Domestic Wholly-Owned Subsidiary of the Borrower which is a Guarantor and is not a Segregated Subsidiary at such time, (2) the Parent or any of its Subsidiaries may transfer (by means of a dividend or capital contribution) assets to the Borrower or any Domestic Wholly- Owned Subsidiary of the Borrower which is a Guarantor and is not a Segregated Subsidiary at such time (in each case so long as no Indebtedness arises as a result of such transfer which would be prohibited pursuant to Section 9.04) and (3) any Foreign Wholly-Owned Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower;
(1) any Foreign Subsidiary of the Borrower which is a Wholly- Owned Subsidiary of the Borrower and is not a Segregated Subsidiary at such time may merge with or into any other Foreign Subsidiary of the Borrower which is also a Wholly-Owned Subsidiary of the Borrower and is not a Segregated Subsidiary at such time and (2) any Domestic Wholly-Owned Subsidiary of the Parent which is a Guarantor and is not a Segregated Subsidiary at such time may be merged into the Borrower (as long as the Borrower is the surviving corporation of such merger as a Wholly-Owned Subsidiary of the Parent) or any other Domestic Wholly-Owned Subsidiary of the Borrower which is a Guarantor and is not a Segregated Subsidiary at such time;
(xii) in addition to transfers permitted above, and so long as no Default or Event of Default exists at the time of the respective transfer or immediately after giving effect thereto, the Borrower and its Domestic Wholly-Owned Subsidiaries which are Guarantors shall be permitted to transfer assets (other than cash, Cash Equivalents and Equity Interests in any Credit Party) to other Subsidiaries of the Borrower so long as cash in an amount at least equal to the Fair Market Value of the assets so transferred is received by the respective transferor;
(Ixiii) so long as no Default or Event of Default then exists (and would not exist immediately after giving effect thereto), the Borrower shall be permitted to repurchase Equity Interests in its Subsidiaries of the Borrower on the Initial Borrowing Date which are not Wholly-Owned Subsidiaries of the Borrower on the Initial Borrowing Date (before giving effect to the respective purchase) at prices not to exceed the Fair Market Value thereof, provided that, after giving effect to each purchase pursuant -------- to this clause (xiii), each of (x) the Leverage Ratio shall not exceed the Minimum Required Leverage Ratio and (y) the Borrower shall have Available Liquidity after giving effect thereto of at least $75,000,000;
(xiv) inactive Subsidiaries of the Borrower or the Parent (excluding in any event the Borrower) may be liquidated from time to time, so long as the Parent or the Borrower, as the case may be, determines that such liquidation is not reasonably likely to be adverse in any material respect (including without, limitation, as a result of any assumption of liabilities) to the Parent or the Borrower;
(xv) Subsidiaries of the Parent on the Initial Borrowing Date, which do not constitute the Borrower or a Subsidiary thereof, may at any time after the Initial Borrowing Date be transferred to the Borrower or a Domestic Wholly-Owned Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of thereof, in each case so long as the Parent and the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) determine that such action is not reasonably likely to be adverse to the Borrower and its Subsidiaries mayin any material respect;
(xvi) sales, directly or indirectly, sell, contribute contributions and make other transfers by the Receivables Sellers of Receivables Facility Assets to the Receivables Subsidiary and sales and other transfers of Receivables Facility Assets to a by the Receivables Subsidiary to one or more purchasers pursuant to the respective Permitted Receivables Facility, and such Receivables Subsidiary may sell purchases and make other transfers acquisitions of Receivables Facility Assets to by the IssuerReceivables Subsidiary, in each case pursuant to the terms of the respective Permitted Receivables Documents under a Permitted Accounts Receivables SecuritizationFacility, shall be permitted;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nxvii) the Borrower and its Subsidiaries may consummate the US Commodity Business Identified Division Sale shall be permitted, provided that not less than -------- (x) same shall be for Fair Market Value, (y) at least 75% of the aggregate consideration therefor shall be in the form of cash and (z) 100% of the Net Sale Proceeds therefrom thereof is applied to repay Term Loans as provided in Section 4.02(d);
(xviii) the Borrower may make sales of the Existing Negotiable Securities, provided that (x) same shall be for Fair Market Value and (y) -------- 100% of the aggregate consideration therefor shall be in the form of cash;
(xix) so long as no Default or Event of Default then exists, and so long as no Default or Event of Default will exist after giving effect to the respective Permitted Acquisition, the Parent and its Wholly-Owned Subsidiaries may from time to time make Permitted Acquisitions, so long as the requirements contained in the definition of "Permitted Acquisition" are used within 90 days satisfied and the aggregate consideration paid (including, without limitation, the value of any noncompete, earn-out and other deferred payout arrangements and the principal amount of Seller Debt and Permitted Acquired Debt, but for this purpose excluding any Parent Common Stock directly issued as a component of the purchase price) in connection with the respective Permitted Acquisition does not, without the prior written consent of the Required Banks, exceed $100,000,000 (or, at any time after the Borrower shall have received aggregate Net Cash Proceeds (for this purpose, excluding all such Net Cash Proceeds used, or which will be used, to (i) redeem, repay or repurchase Existing Senior Secured Subordinated Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or as provided in the proviso to clause (iv) make of Section 9.12) of at least $250,000,000 from one or more Permitted Subordinated Notes Issuances effected after the Initial Borrowing Date, $200,000,000);
(xx) to the extent the Parent acquires (but not pursuant to a voluntary prepayment Permitted Acquisition) or constructs any Real Property or acquires (but not pursuant to a Permitted Acquisition) any equipment, in each case after the Initial Borrowing Date, then (x) in the case of Term Loans Real Property, within 180 days of the acquisition thereof (or in the case of Real Property being constructed or upon which substantial improvements are being made, within 180 days after the completion of such construction or substantial improvements) and (y) in the case of equipment, within 120 days of the acquisition thereof, the Parent or the respective Subsidiary owning same may sell the respective Real Property or equipment pursuant to a sale- leaseback transaction so long as (x) the sale is for Fair Market Value, (y) at least 75% of the aggregate consideration therefor shall be in the form of cash and (z) to the extent Capitalized Lease Obligations result from the respective sale-leaseback, such Capitalized Lease Obligations shall be permitted pursuant to Section 4.39.04; and
(xxi) each of the Parent and its Subsidiaries may sell or liquidate, in each case for cash at fair market value (as reasonably determined by the Parent or the respective Subsidiary), Cash Equivalents. Notwithstanding anything to the contrary contained above, in no event shall the Parent or any of its Subsidiaries (x) sell, transfer or dispose of any Equity Interests in the Borrower or (y) sell any Equity Interests in any other Subsidiary of the Parent unless, in the case of this clause (y), the respective sale or disposition meets the requirements of one or more of the clauses of Section 9.02 set forth above and unless all Equity Interests in the respective Subsidiary owned by Parent and its Subsidiaries are sold pursuant to the respective sale. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to the Parent or a Subsidiary of the Parent) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent), or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments may be made to the extent permitted by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary;
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and;
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3; and
(o) (i) so long as the Venator IPO Outside Date has not occurred, the Borrower and its Subsidiaries may consummate the Initial Venator IPO Transaction and wind up, liquidate or dissolve (other than, in each case, with respect to the Borrower) any of their affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties or assets solely for the purpose of effectuating the Venator IPO Transactions, and Venator and its Subsidiaries may wind up, liquidate or dissolve any of their affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties or assets solely for the purpose of effectuating the Venator IPO Transactions and (ii) the Borrower and its Subsidiaries may consummate any Subsequent Venator Distributions.
Appears in 1 contract
Samples: Credit Agreement (Huntsman CORP)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Parent will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidationmerge, or consolidate, convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets, including property acquired by way of trade or barter agreements, in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments Capital Expenditures made by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 8.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary course of business, sell, lease or otherwise dispose of any assets provided that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (ii) shall not exceed $2,500,000 in any fiscal year of the Borrower;
(iii) investments may be made to the extent permitted by Section 8.48.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(civ) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation not otherwise permitted by Section 8.04(iv));
(dv) each of the Borrower and its Subsidiaries may make sales or other transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents airtime in the ordinary course of business other than to a Receivables Subsidiaryand consistent with past practices;
(evi) licenses or sublicenses by the Borrower and its Subsidiaries may sell of software, trademarks and other intellectual property and general intangibles and licenses, leases or discount, in each case without recourse and in the ordinary course subleases of business, Accounts Receivable arising other property in the ordinary course of business (x) and which are overdue, or (y) which do not materially interfere with the business of the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)Subsidiary;
(fvii) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Wholly-Owned Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged transfer assets to or consolidated (x) with lease assets to or into acquire or lease assets from the Borrower or any Wholly-Owned Subsidiary (so long as the Borrower is security interests granted pursuant to the surviving entitySecurity Documents are not, (y) with or into any one or more Wholly-Owned Subsidiaries in the judgment of the Borrower (other than an Unrestricted SubsidiaryCollateral Agent, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (zadversely affected thereby) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sellbe merged or consolidated with or into, leaseor be liquidated or dissolved into, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from so long as the Borrower or a Domestic such Wholly-Owned Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiaryis the surviving corporation);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 1 contract
Samples: Credit Agreement (Capstar Radio Broadcasting Partners Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related trans actions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business) of any Person, except thatthat the following shall be permitted:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may (A) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (B) sell, lease or otherwise dispose of any other assets, provided that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (ii) which are not reinvested to acquire Reinvestment Assets in accordance with Section 4.02(d) shall not exceed $1,000,000 in any Fiscal Year;
(iii) sales of assets the Net Sale Proceeds of which are used to acquire Reinvestment Assets in accordance with Section 4.02(d);
(iv) investments may be made to the extent permitted by Section 8.49.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(cv) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04);
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than and consistent with past practices (including, without limitation, sales or transfers of inventory by the Borrower to a Receivables Subsidiaryits Subsidiaries so long as at fair market value);
(evii) the Recapitalization shall be permitted;
(viii) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (xA) which are overdue, overdue or (yB) which the Borrower or such Subsidiary may reasonably determine are difficult to collect collect, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(fix) transfers of condemned property to the respective governmental authority or agency that have condemned same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement, so long as the proceeds thereof are applied as required by Section 4.02(e);
(x) license or sublicenses by the Borrower and its Subsidiaries may license its patentsof software, trade secrets, know-how trademarks and other intellectual property relating to in the manufacture ordinary course of chemical products business and by-products (which do not materially interfere with the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Subsidiary;
(gxi) the Borrower or any Subsidiary may enter into consignment arrangements (as consignor or as consignee) or similar arrangements for the sale of goods in the ordinary course of business and consistent with the past practices of the Borrower and its Subsidiaries prior to the Effective Date;
(xii) the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower (may transfer assets to or lease assets to or acquire or lease assets from the Borrower or any other than a Receivables Subsidiary) Domestic Wholly-Owned Subsidiary or any Domestic Wholly-Owned Subsidiary may be merged or consolidated (x) with or into the Borrower so (as long as the Borrower is the surviving entity, (ycorporation of such merger) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Domestic Wholly-Owned Subsidiary of the Borrower; and
(xiii) so long as no Default or Subsidiaries shall be Event of Default then exists or would result therefrom, the surviving entity Borrower may acquire assets or (z) with or into the capital stock of any Person in connection with the consummation of an (any such acquisition permitted by this clause (xiii), a "Permitted Acquisition; "), provided, howeverthat (i) such Person (or the assets so acquired) was, that after giving effect immediately prior to such merger acquisition, engaged (or consolidation used) primarily in the surviving Subsidiary shall be business permitted pursuant to Section 9.13(a), (ii) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes as Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose Subsidiary of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection B) such Person is merged with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by into the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from with the Borrower or a Domestic such Wholly-Owned Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiarybeing the surviving corporation of such merger);
(k) , and in any Subsidiary case, all of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidateprovisions of Section 9.14 have been complied with in respect of such Person, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed any Liens or Indebtedness and/or assumed or issued in connection with such acquisition are otherwise permitted under Section 9.01 or 9.04, as the case may be and (iv) make the aggregate amount of consideration paid by the Borrower or any other Person in connection with all such Permitted Acquisitions shall not exceed $10,000,000. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to Holdings or a voluntary prepayment Subsidiary of Term Loans pursuant Holdings) shall be sold free and clear of the Liens created by the 57 Security Documents, and the Agent and Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into consummate any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or consummate any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials, equipment and Intellectual Property in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted (other than Capital Expenditures to the extent constituting a Permitted Acquisition unless otherwise permitted by under Section 8.49.15);
(bii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.710.05;
(civ) the Borrower and its Subsidiaries may sell assets (including Equity Interests of any Subsidiary but otherwise subject to the proviso to this clause (iv) in the case of a Subsidiary Guarantor), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) the consideration received by the Borrower or such Subsidiary consists of at least 75% cash or Cash Equivalents and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(d) and (z) such sale does not constitute all or substantially all of the assets of Holdings and its Subsidiaries (taken as a whole); provided that the sale of the Equity Interests of any Subsidiary Guarantor shall not be permitted pursuant to this clause (iv) unless such sale is for all of the outstanding Equity Interests of such Subsidiary Guarantor;
(v) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04);
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fvii) each of the Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee conduct of the Administrative Agent without the consent business of the licensee Borrower and its Subsidiaries taken as a whole, in each case so long as no such license shall (i) transfer ownership of such Technology to any other Person grant otherwise prohibits the Collateral Agent’s security interest in the asset or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)property subject thereto;
(gviii) (A) any Subsidiary of the Borrower (other than a Receivables Subsidiarythe Captive Insurance Company) may merge with and into, or be merged dissolved or consolidated (x) with or into liquidated into, the Borrower or any Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving entityPerson of any such merger, dissolution or liquidation, (yii) with in all other cases, a Subsidiary Guarantor is the surviving Person of any such merger, dissolution or into any one or more Wholly-Owned Subsidiaries liquidation, and (iii) in all cases, the security interests granted to the Collateral Agent for the benefit of the Borrower Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation) and (B) any Non-Guarantor Subsidiary (other than an Unrestricted Subsidiarythe Captive Insurance Company) may merge with and into, Airstar Corporationor be dissolved or liquidated into, Huntsman Headquarters Corporation or IRIC); provided, however, that a Whollyany other Non-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Guarantor Subsidiary;
(hix) Permitted Acquisitions may be made to the extent permitted by Section 9.15;
(x) the Borrower and its Subsidiaries may sell or exchange specific items of equipment (including pursuant to trade up/trade in transactions), so long as the purpose of each such sale or exchange is to acquire (and results within 120 days of such sale or exchange in the acquisition of) replacement items of equipment;
(A) the Borrower may transfer assets to any Subsidiary Guarantor and any Subsidiary of the Borrower may transfer assets to the Borrower or to any Subsidiary Guarantor and (B) any Non-Guarantor Subsidiary may transfer assets to any other Non-Guarantor Subsidiary (other than to the Captive Insurance Company);
(xii) the Captive Insurance Company and any Immaterial Subsidiary may be dissolved or liquidated, if Holdings determines that it is in the best interests of the Credit Parties to do so; and
(xiii) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving IndebtednessIntellectual Property which, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) reasonable judgment of the Borrower or such Subsidiary has complied with Subsidiary, are determined to be uneconomical, negligible or obsolete in the conduct of its business. To the extent the Required Lenders (or all of the Lenders, as the case may be) waive the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property 10.02 with respect to the acquisition sale of such other property;
(j) the Borrower any Collateral, or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower Collateral is sold as permitted by this Section 10.02 (other than (I) from the Borrower to Holdings or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiaryanother Credit Party);
(k) any Subsidiary , such Collateral shall be sold free and clear of the Borrower (other than a Receivables Subsidiary) Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions as the Administrative Agent or the Collateral Agent may voluntarily liquidate, wind-up or dissolve;
(l) deem appropriate in order to effect the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Credit Agreement (Town Sports International Holdings Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale and Leaseback Transactionsale-leaseback transactions, except that:
(ai) Restricted Payments the Borrower and each of its Subsidiaries may be made (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, provided that the aggregate fair market value (as determined in good faith by the Borrower) of all assets subject to sales, leases or other dispositions effected in any fiscal year of the Borrower pursuant to this clause (x) shall not exceed $5,000,000, (y) sell or otherwise dispose of other assets (other than the Equity Interests of any Subsidiary of the Borrower unless such sale constitutes a sale of 100% of the Equity Interests of such Subsidiary owned by the Borrower and its Subsidiaries), provided that (1) the Borrower or the respective Subsidiary selling or disposing of assets pursuant to this clause (y) receives consideration therefor which, in the good faith judgment of the Borrower, is at least equal to the extent permitted fair market value of the assets being sold or disposed of and which consideration consists at least 75% of cash (determined by taking the amount of cash and the fair market value, as reasonably determined by the Borrower in good faith, of all non-cash collateral) and (2) the aggregate fair market value (as determined in good faith by the Borrower) of all assets subject to sales, leases or other dispositions effected in any fiscal year of the Borrower pursuant to this clause (y) shall not exceed $15,000,000 (or $35,000,000 in the case of the fiscal year of the Borrower ended closest to December 31, 2001) and (z) sell, in the ordinary course of business, homes acquired in accordance with Section 9.05(iii); provided further, that the Net Asset Sale Proceeds of all asset sales effected pursuant to this Section 9.02(i) shall be required to be applied and/or reinvested as (and to the extent) required by Section 8.44.02(e);
(bii) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and each of its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation not permitted by Section 9.04);
(diii) each of the Borrower and each of its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(eiv) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale);
(fv) licenses or sublicenses by the Borrower and its Subsidiaries may license its patentsof software, trade secrets, know-how trademarks and other intellectual property relating to in the manufacture ordinary course of chemical products business and by-products (which do not materially interfere with the “Technology”) provided that such license business of the Borrower or any of its Subsidiaries shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)permitted;
(gvi) the Transaction shall be permitted;
(vii) the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower (may transfer assets to or lease to or acquire or lease assets from the Borrower or any other than a Receivables Subsidiary) Domestic Wholly-Owned Subsidiary of the Borrower, or any Domestic Wholly-Owned Subsidiary of the Borrower may be merged or consolidated (x) with or into the Borrower (so long as the Borrower is the surviving entity, (yentity of such merger) with or into any one or more other Domestic Wholly-Owned Subsidiaries Subsidiary of the Borrower, or any Foreign Subsidiary of the Borrower (other than an Unrestricted Subsidiarymay transfer assets to the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that any Foreign Subsidiary of the Borrower which is a Wholly-Owned Subsidiary or Subsidiaries shall be may merge with any other Foreign Subsidiary of the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be Borrower which is a Wholly-Owned Subsidiary;
(hviii) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose sell distribution rights to distributors of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in (whether or not such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% distributor was a distributor of the Consolidated Net Tangible Assets the Borrower and and/or its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal prior to the net proceeds giving effect of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used sale) in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions ordinary course of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertybusiness;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nix) the Borrower and its Subsidiaries may consummate enter into sale-leaseback transactions in accordance with the US Commodity Business Sale provided that not less than 75Lease Program Documents so long as the Borrower and/or its respective Subsidiaries receive cash in an amount equal to at least 90% of the Net Sale Proceeds therefrom fair market value (as determined in good faith by the Borrower) of all assets subject thereto (it being understood that, in accordance with the terms of the Lease Program Documents, one or more substitutions of Equipment (as defined in the Lease Program Documents) may be made for Equipment theretofore subject to the Lease Program Documents, although any sales of assets by the Borrower and its Subsidiaries which were theretofore subject to the Lease Program Documents shall be required to be justified pursuant to the provisions of Section 9.02(i) and (to the extent applicable) applied in accordance with the requirements of Section 4.02(e));
(x) the Borrower and its Subsidiaries may effect one or more Permitted Bakery Swaps; and
(xi) the Borrower and its Subsidiaries may enter into agreements to effect transactions which are used within 90 days permitted pursuant to the provisions of the preceding clauses (i) repay Senior Secured Notes through (2010x), and may also enter into agreements to effect transactions which are not permitted pursuant to the provisions of preceding clauses (i) through (x); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment provided that in the case of Term Loans any such agreements with respect to transactions which are not permitted pursuant to the provisions of preceding clauses (i) through (x) the respective agreement shall expressly provide that it is terminable by the Borrower or its respective Subsidiary which entered into such agreement (without payment of break-up, termination or any similar fees or damages payable by the Borrower or any of its Subsidiaries (calculated according to the maximum amount thereof payable in accordance with the terms of such agreement) in excess of $10,000,000) in the event that the Required Lenders do not approve in writing the respective transaction (or the Borrower is unable to refinance all Indebtedness pursuant to this Agreement if such consent is not obtained). To the extent the Required Lenders waive the provisions of this Section 4.39.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to the Borrower or a Subsidiary of the Borrower) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Flowers Foods Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may be made to the extent permitted Capital Expenditures by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease shall be permitted (as lessoralthough any Capital Expenditures constituting a Permitted Acquisition shall be governed by clause (vi) real or personal property in the ordinary course of business other than to a Receivables Subsidiarythis Section 7.4 and not by this clause (i));
(dii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(eiii) each of the Borrower and its Subsidiaries may sell obsolete or worn-out equipment or materials;
(iv) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary), so long as (w) no Event of Default then exists or would result therefrom, (x) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value, and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $75,000 in any fiscal year of the Borrower;
(v) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)thereof;
(fvi) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent acquire all or any assignee substantially all of the Administrative Agent without the consent assets of the licensee and no such license shall (i) transfer ownership of such Technology any Person pursuant to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “a Permitted Technology Licenses”)Acquisition;
(gvii) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may transfer any of its assets to the Borrower and may be merged merged, consolidated or consolidated (x) liquidated with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds corporation of any such disposition are used to acquire such other propertymerger, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (consolidation or liquidation, and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property provided that Borrower provides Lender with respect to the acquisition written notice within five Business Days of such other property;transaction; and
(jviii) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower another Subsidiary and may be merged, consolidated or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower liquidated with or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) into any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% Borrower provides Lender with written notice within five Business Days of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3such transaction.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Parent shall not convey, sell or otherwise dispose of (or agree to do any of the foregoing at any future time) the Borrower Common Stock, whether now owned or hereafter acquired. The Parent shall not purchase or otherwise acquire (in one or a series of related transactions) all or substantially all of the Capital Stock or the property or assets of any Person, except that the Parent may do so with the cash proceeds received from the sale or issuance of equity securities of the Parent or any of its Subsidiaries otherwise permitted by Section 10.13 net of any amounts required to repay amounts outstanding under the Term Loan Facility pursuant to Section 5.02(A)(d)(i) and with the cash proceeds from the incurrence of any Indebtedness by the Borrower or any of its Subsidiaries otherwise permitted hereunder; provided that (i)(A) such Person is, at the time of such purchase or other acquisition, engaged in a line of business substantially similar to the Permitted Business or (B) the property or assets being purchased or otherwise acquired are used in a line of business substantially similar to the Permitted Business, (ii) the Parent shall use commercially reasonable efforts (including, if such purchase or other acquisition would otherwise be in violation of Section 10.08, seeking the consent of the Required Banks to the waiver of any such violation under such Section) to cause such purchase or other acquisition to be made by the Borrower or any of the Borrower's Subsidiaries and (iii) the Parent shall use commercially reasonable efforts to cause any Indebtedness incurred in connection with such purchase or other acquisition to be on a non-recourse basis with respect to the Parent. The Borrower will shall not, and will shall not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions by the Borrower of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may be made to the extent permitted Capital Expenditures by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease shall be permitted to the extent not in violation of Section 10.08; provided, however, that no Default or Event of Default (as lessorboth before and after giving effect to such transaction) real or personal property shall have occurred and be continuing and the Borrower is in the ordinary course of business other than pro forma compliance with Sections 10.09, 10.10 and 10.20 after giving effect to a Receivables Subsidiary;
(d) each of such transaction; provided, further, however, that Maintenance Capital Expenditures by the Borrower and its Subsidiaries may make sales or transfers shall be permitted to the extent not in violation of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables SubsidiarySection 10.08;
(eii) so long as there shall not exist a Default or an Event of Default (both before and after giving effect to such sale), (A) the Borrower and its Subsidiaries may sell or discountfor fair value and for cash equipment in the ordinary course of business to any third party, so long as the proceeds therefrom do not exceed $500,000 in each case without recourse any fiscal year of the Borrower and (B) the Borrower and its Subsidiaries may sell for fair value and for cash attaching machinery to third party customers of the Borrower and its Subsidiaries, in the ordinary course of business, Accounts Receivable arising so long as the proceeds therefrom do not exceed $2,500,000 in any fiscal year of the Borrower and so long as such proceeds are used within 270 days after the receipt thereof to purchase or manufacture replacement machinery or to prepay Loans pursuant to Section 5.02(A)(f);
(iii) each of the Borrower and each of its Subsidiaries may lease (as lessee) real or personal property to the extent permitted by Section 10.04 (so long as such lease does not create Capitalized Lease Obligations);
(iv) investments and other transactions to the extent permitted by Section 10.06 shall be permitted;
(v) sales of inventory (other than attaching machinery) in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)shall be permitted;
(fvi) the Transaction shall be permitted as contemplated by the Documents;
(vii) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how sell inventory and other intellectual property relating assets used in the ordinary course of business to the manufacture of chemical products and by-products (the “Technology”A) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower that are party to the Security Agreement and (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC)B) Subsidiaries of the Borrower that are not organized and that are not doing business in the United States; provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or sales described in subclause (zB) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to above are for cash at fair market value and do not exceed $5,000,000 per year for all such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned SubsidiarySubsidiaries;
(hviii) the Borrower and its Subsidiaries the Board of Directors of PCI may sellcause PCI to be dissolved or PCI may be merged with and into the Borrower, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunderthe Borrower being the surviving corporation;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (Bix) the Borrower may cause Xxx to be dissolved or such merged with and into the Borrower with the Borrower being the surviving corporation;
(x) Xxx, PCI and any Subsidiary has complied incorporated in Canada may transfer assets to the Borrower; and
(xi) the Borrower may cause any Subsidiary incorporated in Canada to be dissolved or merged with or into the Borrower with the Borrower being the surviving corporation. To the extent the Required Banks waive the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property 10.02 with respect to the acquisition sale of any Collateral (to the extent the Required Banks are permitted to waive such other property;
(j) the Borrower provisions in accordance with Section 15.10), or any Subsidiary Collateral is sold as permitted by this Section 10.02, such Collateral shall be sold free and clear of the Borrower may sellLiens created by the Security Documents, lease, transfer or otherwise dispose of and the Administrative Agent and Collateral Agent shall be authorized to take any or all of its assets actions deemed appropriate in order to effect the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may be made to the extent permitted Capital Expenditures by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property shall be permitted to the extent not in the ordinary course violation of business other than to a Receivables SubsidiarySection 9.07;
(dii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(eiii) the Borrower and its Subsidiaries may sell or otherwise transfer obsolete or worn-out equipment or materials in the ordinary course of business;
(iv) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduein an aggregate principal amount not to exceed $5,000,000 in any fiscal year of the Borrower, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fv) the Borrower and its Subsidiaries may license its patentssell assets in the ordinary course of business in an aggregate amount not to exceed $1,000,000 per sale or series of related sales, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that no more than $5,000,000 of such license shall sales may be assignable made pursuant to the Administrative Agent or this clause (v) in any assignee fiscal year of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Borrower;
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(hvi) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its sell other assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if other than the aggregate net book value (at capital stock of a Subsidiary unless all of the time capital stock of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year Subsidiary is so sold pursuant to this clause (vi)) so long as (i) plus the aggregate net book value no Default or no Event of all the assets Default then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower and its Subsidiaries or the respective Subsidiary receives at least fair market value (as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds determined in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used good faith by the Borrower or a Subsidiary to acquire other property used or to such Subsidiary, as the case may be, provided, that if the fair market value is greater than $1,000,000 such value shall be used in as determined by the business referred to in Section 8.9 and (B) board of directors of the Borrower or such Subsidiary has complied with and evidenced by a resolution of such board of directors set forth in an officer's certificate delivered to the provisions Administrative Agent within 15 Business Days of such resolution), (iii) the total consideration received by the Borrower or such Subsidiary is at least 80% cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 7.11 with respect 3.03(b) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to such property, then such dispositions clauses (or, v) and (vi) of this Section 9.02 shall not exceed $5,000,000 in any fiscal year of the Borrower;
(vii) Investments may be made to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this permitted by Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property9.05;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(lviii) the Borrower and its Subsidiaries may, directly may lease (as lessee) or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to license (as licensee) real or personal property (so long as any such lease does not create a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets Capitalized Lease Obligation except to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitizationextent permitted by Section 9.04(iv));
(mix) Foreign Permitted Acquisitions may be made in accordance with Section 8.14;
(x) the Borrower and its Subsidiaries may enter into Foreign Factoring Transactions; andgrant leases, subleases, licenses or sublicenses to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(nxi) the Borrower and its Subsidiaries may consummate sale and leaseback transactions of fixed or capital assets, in each case so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale and leaseback transaction is in an arm's-length transaction and the US Commodity Business Sale provided that not less than 75% Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) the total consideration received by the Borrower or such Subsidiary in connection with each such sale and leaseback transaction is in the form of cash and is paid at the time of the closing thereof, (iv) the consummation thereof shall occur within 90 days after the Borrower or such Subsidiary acquires or completes the construction of such fixed or capital asset and (v) the Net Sale Proceeds therefrom are used within 90 days applied and/or reinvested as (and to the extent) required by Section 3.03(b);
(xii) any Subsidiary of the Borrower may be merged, consolidated, dissolved or liquidated with or into the Borrower or any other Credit Party so long as the Borrower or such other Credit Party is the surviving corporation of such merger, consolidation, dissolution or liquidation;
(xiii) any Domestic Subsidiary of the Borrower may be merged, consolidated, dissolved or liquidated with or into any other Domestic Subsidiary of the Borrower so long as (i) repay Senior Secured Notes (2010); in the case of any such merger, consolidation, dissolution or liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger, consolidation, dissolution or liquidation, and (ii) repay Senior Notes in the case of any such merger, consolidation, dissolution or liquidation involving a Wholly-Owned Domestic Subsidiary of the Borrower, in addition to the requirements of preceding clause (2012i), a Wholly-Owned Domestic Subsidiary is the surviving corporation of such merger, consolidation, dissolution or liquidation;
(xiv) any Foreign Subsidiary of the Borrower may be merged, consolidated, dissolved or liquidated with or into any other Foreign Subsidiary of the Borrower so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger, consolidation, dissolution or liquidation, and (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Wholly-Owned Foreign Subsidiary of the Borrower, in addition to the requirements of the preceding clause (i), a Wholly-Owned Foreign Subsidiary is the surviving corporation of such merger, consolidation, dissolution or liquidation;
(xv) the Borrower may transfer assets to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor and any Subsidiary of the Borrower may transfer assets to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor, in each case so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer); and
(iiixvi) repay Receivables Facility Attributed Indebtedness and/or Dividends may be paid as, and to the extent, permitted by Section 9.03. To the extent the Required Lenders or all of the Lenders, as the case may be, waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (iv) make other than to the Borrower or a voluntary prepayment Subsidiary thereof), such Collateral shall be sold free and clear of Term Loans pursuant the Liens created by the respective Security Documents and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Each of Holdings and the Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business or reinvestments in assets) of any Person if permitted hereby and in the Senior Credit Agreement and the TCP Purchase Agreement (or agree to do any of the foregoing at any future time), except that:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 10.07;
(ii) each of the Borrower and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any property which, in the reasonable 70 judgment of such Person, is obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) sell, lease or otherwise dispose of any other property; provided that the aggregate Net Cash Proceeds of all assets subject to sales or other dispositions pursuant to this sub-clause (ii)(y) shall not exceed $1.0 million in the aggregate in any four consecutive fiscal quarters of the Borrower;
(iii) investments may be made to the extent permitted by Section 8.410.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(civ) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 10.04 (vi));
(dv) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiaryand that are consistent with past practices;
(evi) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale);
(fvii) [Intentionally omitted]
(viii) the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower may transfer assets or lease to or acquire or lease assets from the Borrower or any other Domestic Wholly-Owned Subsidiary or any Domestic Wholly-Owned Subsidiary may be merged into the Borrower or any other Domestic Wholly-Owned Subsidiary of the Borrower;
(ix) Permitted Acquisitions shall be permitted;
(x) any Credit Party may sell or exchange specific items of equipment in the ordinary course of business, so long as the purpose of each such sale or exchange is to acquire (and results within 270 days of such sale or exchange in the acquisition of) replacement items of equipment which are, in the reasonable business judgment of such Credit Party, the functional equivalent of the item of equipment so sold or exchanged;
(xi) the Borrower and its Domestic Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating transfer assets in the ordinary course of business to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee Foreign Subsidiaries of the Administrative Agent without Borrower having a fair market value (as determined in good faith by the consent Board of Directors or senior management of the licensee and no such license shall (iBorrower) transfer ownership not to exceed $1.0 million in any fiscal year of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Borrower;
(gxii) the assets of any Foreign Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect transferred to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower and any Foreign Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets to be merged into the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from its Subsidiaries so long as the Borrower or a Domestic such Subsidiary to a is the surviving entity;
(xiii) disposition of Cash Equivalents, Foreign Subsidiary or (II) to a Receivables SubsidiaryCash Equivalents and other investments permitted under Section 10.05(ii);
(kxiv) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;[Intentionally omitted]
(lxv) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell FTS Systems, Inc., formerly known as Kinetics Thermal Systems, Inc. (such transaction, the "KTS Sale"); provided that the Net Cash Proceeds to be received as a result of the KTS Sale shall not be less than $5.0 million and make other transfers either (a) if the obligations under any indemnity arrangements with the purchaser of Receivables Facility Assets FTS Systems, Inc. in the KTS Sale do not expose any seller thereof to liability in excess of $1.0 million, the Issuernet proceeds of such sale are used by the Borrower for working capital and general operations, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
or (m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nb) the Borrower net proceeds of such sale shall be used to repay and its Subsidiaries may consummate permanently reduce the US Commodity Business Sale provided that not less than 75% Indebtedness of the Net Sale Proceeds therefrom are used within 90 days Borrower, prior to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3any other use thereof.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions by the Borrower or any of its Subsidiaries of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.08;
(bii) Investments so long as there shall not exist a Default or Event of Default (both before and after giving effect to such sale), the Borrower and its Subsidiaries may be made sell obsolete, worn-out or uneconomic equipment so long as the aggregate amount of Net Sale Proceeds from such sales pursuant to the extent permitted by Section 8.7this clause (ii) in any one fiscal year does not exceed $200,000;
(ciii) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Sections 9.04 and 9.08;
(div) investments may be made to the extent permitted by Section 9.06;
(v) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and inventory in the ordinary course of business, Accounts Receivable arising ; and
(vi) the Transaction shall be permitted as contemplated by the Documents. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral (to the extent the Required Banks are permitted to waive such provisions in the ordinary course of business (x) which are overdueaccordance with Section 13.12), or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not any Collateral is sold as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f)9.02, hereafter “Permitted Technology Licenses”);
(g) any Subsidiary such Collateral shall be sold free and clear of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into Liens created by the Borrower so long as Security Documents, and the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Credit Agreement (Ubiquitel Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than sales of inventory in the ordinary course of business), with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement any sale-leaseback transactions with any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.46.07;
(bii) the Borrower and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.76.05;
(civ) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (iv)), so long as (u) no Default or Event of Default then exists or would result therefrom, (v) each such sale is in an arm’s-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (w) the consideration received by the Borrower or such Subsidiary consists of at least 75% cash and is paid at the time of the closing of such sale, (x) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.13(c), (y) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $25,000,000 in any fiscal year of the Borrower (for this purpose, using the Fair Market Value of property other than cash); provided that any unused portion of this basket in any fiscal year of the Borrower may be utilized in the immediately succeeding fiscal year of the Borrower (but not in any fiscal year of the Borrower thereafter), with the portion so carried forward to be deemed utilized last in such immediately succeeding fiscal year of the Borrower and (z) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $50,000,000 (for this purpose, using the Fair Market Value of property other than cash);
(v) the Borrower and each of its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in the ordinary course of business other than (so long as any such lease or license does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 6.04(iv));
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(evi) the Borrower and each of its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fvii) the Borrower and each of its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how leases or subleases to other Persons in the ordinary course of business and other intellectual property relating to not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)its Subsidiaries;
(gviii) the Borrower or any Subsidiary of the Borrower may convey, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor;
(ix) any Subsidiary of the Borrower (other than a Receivables SubsidiaryNon-Recourse Entity or the Xxxxxx Xxx Servicer Entity) may merge or consolidate with and into, or be merged dissolved or consolidated (x) with or into liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor, so long as (A) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving entityor continuing entity of any such merger, consolidation, dissolution or liquidation and (yB) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (in all other than an Unrestricted Subsidiarycases, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Domestic Subsidiary or Subsidiaries shall be of the Borrower which is a Subsidiary Guarantor is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation;
(zx) any Foreign Subsidiary of the Borrower may be merged, consolidated or amalgamated with and into, or into be dissolved or liquidated into, or transfer any Person in connection with the consummation of an Acquisition; providedits assets to, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a any Wholly-Owned SubsidiaryForeign Subsidiary of the Borrower, so long as such Wholly-Owned Foreign Subsidiary of the Borrower is the surviving or continuing entity of any such merger, consolidation, amalgamation, dissolution or liquidation;
(hxi) Permitted Acquisitions may be consummated in accordance with the requirements of Section 6.05(xii) and Permitted Foreign Acquisitions may be consummated in accordance with the requirements of Section 6.05(xxi);
(xii) the Borrower and its Subsidiaries may sell, transfer liquidate or otherwise dispose of any asset Cash Equivalents in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations the ordinary course of business for cash or an Operating Financing Lease otherwise permitted hereunderCash Equivalents;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nxiii) the Borrower and its Subsidiaries may consummate convey, sell or otherwise transfer any Servicing Rights with respect to Residential Mortgage Loans owned or controlled by Xxxxxx Mae to the US Commodity Business Sale provided Xxxxxx Xxx Servicer Entity;
(xiv) to the extent that not less than 75% an MSR Lender which is a Government Sponsored Entity exercises its MSR Call Option, the Borrower or the applicable Subsidiary of the Borrower may sell the Servicing Rights or all of the Equity Interests of the Xxxxxx Mae Servicer Entity, as the case may be, that are subject to such MSR Call Option so long as the Net Sale Proceeds therefrom are used within 90 days applied in accordance with Section 2.13(c);
(xv) Subsidiaries of the Borrower may convey, sell or otherwise transfer any Residential Mortgage Loans originated and owned by such Subsidiary to an Approved Takeout Investor in accordance with the terms of the respective Short-Term Warehouse Documents;
(ixvi) repay Senior Secured Notes (2010any Seller may sell Transferred Assets to a Non-Recourse Servicer Advance Debt Entity in accordance with the terms of the applicable Receivables Purchase Agreement in connection with the incurrence by such Non-Recourse Servicer Advance Debt Entity of Indebtedness permitted by Section 6.04(xii); provided that such Seller shall have received aggregate cash proceeds from such Non-Recourse Servicer Advance Debt Entity at the time of the respective transfer of not less than 70% of the face amount of the Transferred Receivables that constitute Transferred Assets and with the balance of such purchase price to be paid through the issuance by such Non-Recourse Servicer Advance Debt Entity of a Subordinated Seller Advance Note;
(iixvii) repay Senior Notes Green Tree SerVertis Acquisition LLC or a similarly structured Subsidiary of the Borrower may acquire Residential Mortgage Loans for the sole purpose of, simultaneously with such acquisition, assigning (2012and may assign) all of its right, title and interest in such Residential Mortgage Loans to either (x) a trust or other securitization entity or a similarly structured entity created on behalf of the SerVertis Funds or a similarly structured entity or (y) any Affiliate of the SerVertis Funds or a similarly structured entity (other than the Borrower or any of its Subsidiaries), including without limitation, SerVertis REO LLC, a Delaware limited liability company, provided that such acquisition is funded solely with cash or other proceeds received, either directly or indirectly, by Green Tree SerVertis Acquisition LLC or such other similarly structured Subsidiary of the Borrower from the SerVertis Funds or any Affiliate of the SerVertis Funds or a similarly structured entity (other than the Borrower or any of its Subsidiaries); and
(iiixviii) repay Receivables Facility Attributed Indebtedness and/or the Borrower or any Subsidiary may in the ordinary course of business convey, sell or otherwise dispose of REO Property. To the extent the Required Lenders waive the provisions of this Section 6.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.02 (iv) make other than to the Borrower or a voluntary prepayment Subsidiary thereof), such Collateral shall be sold free and clear of Term Loans pursuant the Liens created by the Security Documents and, in the case of the sale of all of the Equity Interests of a Subsidiary Guarantor permitted by this Section 6.02 (other than to Section 4.3the Borrower or a Subsidiary thereof), such Subsidiary Guarantor shall be released from the Subsidiaries Guaranty, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: First Lien Credit Agreement (Walter Investment Management Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale and Leaseback Transactionsale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries (other than the Receivables Entity) shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) each of the Borrower and its Subsidiaries (other than the Receivables Entity) may in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business;
(iii) Investments may be made to the extent permitted by Section 8.79.05 and Cash Equivalents may be disposed of or liquidated in the ordinary course of business;
(civ) each of the Borrower and its Subsidiaries (other than the Receivables Entity) may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04(vi));
(dv) each of the Borrower and its Subsidiaries (other than the Receivables Entity) may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiaryand consistent with past practices;
(evi) the Borrower and its Subsidiaries (other than the Receivables Entity) may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale);
(fvii) the Borrower and its Subsidiaries (other than the Receivables Entity) may license or sublicense software, trademarks and other intellectual property in the ordinary course of business which do not materially interfere with the business of the Borrower and its Subsidiaries taken as a whole or the Borrower, so long as each such license is permitted to be assigned pursuant to the PCA Security Agreement (to the extent that a security interest in such intellectual property is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any of its Subsidiaries pursuant to the PCA Security Agreement in the intellectual property covered by such license or such sublicense;
(viii) the Borrower and its Subsidiaries may license its patentsmake Timberlands Dispositions, trade secretsPROVIDED that (x) at least 75% of the aggregate consideration received in respect thereof shall consist of cash and Cash Equivalents, know-how and other intellectual property relating to (y) the manufacture of chemical products and by-products (the “Technology”) provided that such license Net Asset Sale Proceeds in respect thereof shall be assignable to applied as provided in Section 4.02(g) and (z) the Administrative Agent gross purchase price in respect thereof shall equal or any assignee exceed the fair market value of all Timberland Properties sold pursuant thereto (as determined in good faith by senior management of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”Borrower);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(jix) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Domestic Wholly-Owned Subsidiary of the Borrower (other than (Ithe Receivables Entity) may transfer assets or lease to or acquire or lease assets from the Borrower or a any other Domestic Wholly-Owned Subsidiary to a Foreign (other than the Receivables Entity) and any Domestic Wholly-Owned Subsidiary (other than the Receivables Entity) may be merged into the Borrower or (II) to a Receivables Subsidiary);
(k) any other Domestic Wholly-Owned Subsidiary of the Borrower (other than a the Receivables SubsidiaryEntity) may voluntarily liquidate(so long as, wind-up or dissolvein the case of any merger involving the Borrower, the Borrower is the surviving corporation thereof);
(lx) the Borrower and its Subsidiaries may(other than the Receivables Entity) may sell or otherwise dispose of additional assets (other than a Timberlands Disposition, directly any Asset Sale pursuant to a Permitted Sale-Leaseback Transaction and a sale or indirectlydisposition of a Converting Plant), sellPROVIDED that (v) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by the senior management of the Borrower), (w) each such sale results in consideration at least 75% of which shall be in the form of cash (for such purpose, taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined in good faith by the senior management of the Borrower, of any other consideration), (x) the Net Sale Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(g) or reinvested in replacement assets to the extent permitted by Section 4.02(g), and (y) the aggregate Net Sale Proceeds of all assets subject to sale or other disposition pursuant to this clause (x) shall not exceed (a) $50,000,000 in any twelve month period or (b) for all such sales and dispositions after the Effective Date, 5% of the Total Relevant Assets (as determined on the last day of the most recently ended fiscal quarter for which financial statements have been made available to the Lenders);
(xi) on and after the Permitted Receivables Facility Transaction Date, the Receivables Sellers may (x) contribute cash to the Receivables Entity the proceeds of which are used to acquire Permitted Receivables Facility Assets from the Receivables Sellers and make other transfers of (y) transfer and reacquire Permitted Receivables Facility Assets to a and from the Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the IssuerEntity, in each case pursuant to to, and in accordance with the terms of, the Permitted Receivables Documents under a Permitted Accounts Receivables SecuritizationFacility Documents;
(mxii) Foreign on and after the Permitted Receivables Facility Transaction Date, the Receivables Entity may transfer and reacquire Permitted Receivables Facility Assets (to the extent acquired from the Receivables Sellers as provided in clause (xi) above) pursuant to, and in accordance with the terms of, the Permitted Receivables Facility Documents;
(xiii) the Borrower and its Wholly-Owned Domestic Subsidiaries may enter into Foreign Factoring Transactions; andmake Permitted Acquisitions, so long as such Permitted Acquisitions are effected in accordance with the requirements of Section 8.13;
(nxiv) the Borrower or any of its Subsidiaries may effect Permitted Sale-Leaseback Transactions in accordance with the definition thereof, PROVIDED that (x) the aggregate amount of all proceeds received by the Borrower and its Subsidiaries from all Permitted Sale-Leaseback Transactions consummated on and after the Effective Date shall not exceed $100,000,000, (y) the Net Sale Proceeds therefrom are applied to repay Term Loans as provided in Section 4.02(g) and (z) the Borrower establishes compliance with Sections 9.08 and 9.09 after giving effect, on a Pro Forma Basis, to the respective sale or disposition;
(xv) each of the Borrower and its Subsidiaries may sell or otherwise dispose of Converting Plants (other than pursuant to a Permitted Sale-Leaseback Transaction), PROVIDED that (v) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by the senior management of the Borrower), (w) each such sale results in consideration at least 75% of which shall be in the form of cash (for such purpose, taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined in good faith by the senior management of the Borrower, of any other consideration), (x) the Net Sale Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(g) or reinvested in replacement assets to the extent permitted by Section 4.02(g), and (y) the aggregate Net Sale Proceeds of all Converting Plants subject to sale or other disposition pursuant to this clause (xv) shall not exceed $60,000,000 in any twelve month period;
(xvi) the Borrower and its Subsidiaries may consummate sell or exchange specific items of equipment, so long as the US Commodity Business Sale provided that not less than 75% purpose of the Net Sale Proceeds therefrom are used each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged; and
(xvii) the Borrower and its Subsidiaries may sell or lease equipment to their respective customers or suppliers in the ordinary course of business, so long as the book value of the equipment sold or leased after the Effective Date (ias reflected on the most recent balance sheet of the Borrower or such Subsidiary prior to the respective sale or lease) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.this clause (xvii) which is either subject at the time of determination to
Appears in 1 contract
Samples: Credit Agreement (Pca Valdosta Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The ------------------------------------------------------- Borrower will not, and will not permit any of its the Borrower's Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) the Borrower and each of its Subsidiaries may in the ordinary course of business, sell or otherwise dispose of equipment and materials which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of the Borrower and each of its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation unless permitted by Section 9.04(iii));
(dv) the Borrower and each of its Subsidiaries may make sales of inventory in the ordinary course of business;
(vi) each of the Borrower and its Subsidiaries may make sales sell other assets (other than less than all of the capital stock of any Subsidiary held by the Borrower and its Subsidiaries) so long as (i) no Default or transfers Event of inventoryDefault then exists or would result therefrom, Cash(ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, Cash Equivalents as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and Foreign Cash Equivalents is received at the time of the consummation of such sale and (iv) the amount of the proceeds received from the assets sold pursuant to this clause (vi) shall not exceed (A) $10,000,000 per such sale (or in a series of related sales) and (B) $25,000,000 in the ordinary course aggregate for all such sales in any fiscal year of business other than to a Receivables Subsidiarythe Borrower;
(evii) each of the Borrower and its Subsidiaries may sell other assets (other than less than all of the capital stock of any Subsidiary held by the Borrower and its Subsidiaries) so long as (i) no Default or discountEvent of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is received at the time of the consummation of such sale, (iv) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (vii) shall not exceed $35,000,000 in any fiscal year of the Borrower and (v) the Net Sale Proceeds therefrom are either applied as provided in Section 4.02(d) or reinvested in assets to the extent permitted by Section 4.02(d);
(viii) any of the Borrower's Subsidiaries may acquire or construct Hotel Properties (including by purchasing the capital stock or partnership interests of the Person or Persons that own such Hotel Properties);
(ix) the Borrower may transfer assets to a Subsidiary Guarantor, and any Wholly-Owned Subsidiary of the Borrower may merge with and into any Subsidiary Guarantor which is a Wholly-Owned Subsidiary, in each case without recourse so long as the respective Subsidiary Guarantor is the surviving corporation of any such merger;
(x) each of the Borrower and its Subsidiaries may grant leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
(xi) each of the Borrower and its Subsidiaries may, in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overduelicense, as licensor or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its licensee, patents, trade secretstrademarks, copyrights and know-how to third Persons and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower one another so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to license by the Borrower or any other WhollyCredit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-Owned Subsidiary how is granted thereunder) and does not otherwise prohibit the granting of the Borrower (other than (I) from a Lien by the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case Credit Party pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) Security Agreement in the Borrower and its Subsidiaries may consummate intellectual property covered by such license. To the US Commodity Business Sale provided that not less than 75% extent the Required Banks or all of the Net Sale Proceeds therefrom are used within 90 days Banks, as the case may be, waive the provisions of this Section 9.02 with respect to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment the sale of Term Loans pursuant any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 9.02, such Collateral shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing fore- going at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, provided that the proceeds of all assets subject to sales or other dispositions pursuant to this clause (ii) shall not exceed $5,000,000 in any fiscal year of the Borrower;
(iii) investments may be made to the extent permitted by Section 8.49.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(civ) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in to the ordinary course of business other than extent permitted by Section 9.04 (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04(v));
(dv) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and inventory in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(gvi) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Wholly- Owned Domestic Subsidiary of the Borrower may sellor be liquidated, leasewound up or dissolved, transfer or otherwise dispose of any all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Borrower or any other Wholly-Owned Domestic Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)Borrower;
(kvii) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolveAcquisition and the Merger shall be permitted;
(lviii) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers each of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate acquire all or substantially all of the US Commodity Business Sale provided that not less than 75assets of the any Person (or all or substantially all of the assets of a product line or division of any Person) or 100% of the Net Sale Proceeds therefrom are used within 90 days to capital stock of any Person (any such acquisition permitted by this clause (viii), a "Permitted Section 9.02(viii) Acquisition"), so long as (i) repay Senior Secured Notes (2010); no Default of Event of Default then exists or would result therefrom, (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment each of Term Loans pursuant to the representations and warranties contained in Section 4.3.7 shall be true and correct in all
Appears in 1 contract
Samples: Credit Agreement (Universal Compression Holdings Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower No Credit Agreement Party will, or will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than the liquidation of Cash Equivalents in the ordinary course of business), with respect to or enter into any such transaction involving all sale-leaseback transactions, or substantially all purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, and intangible assets in the Borrower, enter into an agreement ordinary course of business) of any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by BFPH and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) Holdings and each of its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) enter into transactions permitted under Section 9.01(v);
(iii) Investments may be made to the extent permitted by Section 8.7;9.05; -102-
(civ) Holdings and each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in (so long as any such lease does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04);
(dv) each Subsidiary of the Borrower and its Subsidiaries Holdings may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(evi) BFPH and its Wholly-Owned Subsidiaries shall be permitted to make Permitted Acquisitions so long as same are effected in accordance with the requirements of Section 8.13;
(vii) BFPH and any of its Subsidiaries may acquire the capital stock of, or all or substantially all of the assets of, any Person (or any product line or division of such Person) or merge, consolidate or otherwise combine with another Person (other than a Credit Party), in each case so long as (i) no Default or Event of Default exists or would exist immediately after giving effect thereto, (ii) BFPH, in the case of any merger or consolidation involving BFPH, or such Subsidiary, in other cases, is the surviving corporation and (iii) the Borrower aggregate consideration (including the amount of any liabilities assumed) paid in connection with any transaction pursuant to this Section 9.02(vii) does not exceed the then Available Basket Amount on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such transaction);
(viii) Holdings and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course otherwise dispose of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or any shares of capital stock of any Unrestricted Subsidiaries owned by them and (y) which the Borrower any capital stock or other equity interests of any Person that is not a Subsidiary of BFPH or such Subsidiary may reasonably determine are difficult which were acquired by BFPH or such Subsidiary pursuant to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses an Investment permitted by this Section 8.3(fSections 9.05(vii), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower (xi), so long as (I) in the Borrower is case of clause (y), 100% of the surviving entityconsideration therefor shall be in the form of cash and (II) in the case of clauses (x) and (y), (yA) with no Default or into any one or more Wholly-Owned Subsidiaries Event of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person Default is in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (existence at the time of the respective sale or disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the or would exist immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 after giving effect thereto and (B) the Borrower Net Sale Proceeds therefrom are applied to repay Term Loans and/or reduce the Commitments as provided in Section 4.02(c) or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, reinvested in a Permitted Business to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertyby said Section;
(jix) so long as no Default or Event of Default then exists or would exist immediately after giving effect thereto, (w) any U.S. Subsidiary Guarantor may be merged into or consolidated with any other U.S. Subsidiary Guarantor or BFPH (so long as in the Borrower case of any merger or consolidation involving BFPH, BFPH is the surviving corporation of such merger or consolidation), (x) any U.K. Subsidiary Guarantor may be merged into or consolidated with any other U.K. Subsidiary Guarantor or any Subsidiary U.K. Borrower (so long as in the case of any merger or consolidation involving a U.K. Borrower, a U.K. Borrower is the surviving corporation of such merger or consolidation), (y) any U.K. Borrower may sell, lease, transfer be merged into or otherwise dispose of consolidated with any other U.K. Borrower and (z) any Insignificant Subsidiary may be merged with or all of its assets to the Borrower liquidated into BFPH or any other Wholly-Owned U.S. Subsidiary Guarantor (so long as BFPH or such U.S. Subsidiary Guarantor is the surviving corporation of the Borrower (other than (I) from the Borrower such merger or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiaryliquidation);
(kx) any sales, contributions and other transfers by the Receivables Sellers of Receivables Facility Assets to the Receivables Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute sales and make other transfers of Receivables Facility Assets to a by the Receivables Subsidiary to the Receivables Purchasers (or to the Master Trust created pursuant to the Receivables Facility), and such Receivables Subsidiary may sell purchases and make other transfers acquisitions of Receivables Facility Assets to by the IssuerReceivables Subsidiary, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables SecuritizationFacility shall be permitted;
(mxi) Foreign Subsidiaries may enter into Foreign Factoring Transactions; andtransfers of assets (x) between BFPH and any U.S. Subsidiary Guarantor or between the U.S. Subsidiary Guarantors and (y) between any U.K. Borrower and any U.K. Subsidiary Guarantor or between the U.K. Borrowers or the U.K. Subsidiary Guarantors;
(nxii) the Borrower Subsidiaries of Holdings (other than BFPH) may sell or otherwise transfer and its Subsidiaries may consummate rent or lease back property, so long as (x) the US Commodity Business Sale provided that fair market value of all such property so sold or transferred and rented or leased back pursuant to this clause (xii) in any fiscal year does not less than 75% of exceed $45,000,000 in the aggregate and (y) the Net Sale Proceeds therefrom are used within 90 days applied to repay Term Loans and/or reduce the Commitments as provided in Section 4.02(c) or reinvested in a Permitted Business to the extent permitted by said Section;
(ixiii) Holdings and its Subsidiaries may enter into agreements to effect acquisitions and dispositions of stock or assets so long as the respective transaction is otherwise permitted pursuant to the provisions of this Section 9.02; PROVIDED that Holdings and its Subsidiaries may enter into agreements to effect acquisitions and dispositions of capital stock or assets in transactions not permitted by the provisions of this Section 9.02 at the time the respective agreement is entered into, so long as in the case of each such agreement, such agreement shall be expressly conditioned upon obtaining the requisite consent of the Required Lenders under this Agreement as a condition precedent to the consummation of the respective transaction and, if for any reason the transaction is not consummated because of a failure to obtain such consent, the aggregate liability of Holdings and its Subsidiaries under any such agreement shall not exceed $10,000,000;
(xiv) Holdings and its Subsidiaries may sell or otherwise dispose of additional assets (excluding, assets sold, transferred or disposed of pursuant to the Receivables Facility and the Public Internet Investments) so long as (u) no Default or Event of Default is in existence at the time of the respective sale or disposition or would exist immediately after giving effect thereto, (v) the Net Sale Proceeds from any single asset subject to sale or disposition under this clause (xiv) do not exceed $50,000,000, (w) the aggregate Net Sale Proceeds from all assets subject to sales or dispositions under this clause (xiv) after the Effective Date shall not exceed $125,000,000, (x) each such sale or disposition shall be for fair market value (as determined in the good faith judgment of management of Holdings other than with respect to sales or dispositions in an aggregate amount not to exceed $1,000,000 per calendar year) and at least 75% of the consideration therefor shall be in the form of cash, (y) the Net Sale Proceeds therefrom are applied to repay Senior Secured Notes Term Loans and/or reduce the Commitments as provided in Section 4.02(c) or reinvested in a Permitted Business to the extent permitted by said Section and (2010z) with respect to any -104- asset sale or disposition pursuant to this clause (xiv) which constitutes a Significant Asset Sale, (I) calculations are made by Holdings of compliance with the covenants contained in Section 9.09 for the Calculation Period most recently ended prior to the date of the respective Significant Asset Sale, on a PRO FORMA Basis after giving effect to the respective Significant Asset Sale, (II) such calculations show that such financial covenant would have been complied with if such Significant Asset Sale had been consummated on the first day of the respective Calculation Period and (III) Holdings furnishes to the Administrative Agent an officer's certificate by the chief financial officer of Holdings certifying to the best of his knowledge as to compliance with the requirements of this Section 9.02(xiv) and containing the calculations required by subclauses (I) and (II) above;
(xv) the Recapitalization, the Columbine Sale and the Private Internet Investment Sale shall be permitted to the extent consummated in accordance with the relevant requirements of Section 5.01(g);
(xvi) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons or one another, so long as any such license by Holdings or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the relevant Security Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to such Security Documents in the intellectual property covered by such license;
(xvii) Holdings and its Subsidiaries may sell or otherwise dispose of any Public Internet Investment, so long as (x) no Default or Event of Default is then in existence or would result therefrom and (y) the Net Sale Proceeds therefrom are applied to repay Loans and/or reduce the Commitments to the extent required by Section 4.02(c); and
(iixviii) repay Webcraft may, and may cause its Subsidiaries to, sell or otherwise dispose of the SDBS Division, so long as no Default or Event of Default is then in existence or would result therefrom. Notwithstanding anything to the contrary contained above, in no event shall Holdings or any of its Subsidiaries (x) sell or otherwise transfer and rent or leaseback property except as expressly provided in clause (xii) above or (y) at any time prior to the Take-Out Date, convey, sell, lease or otherwise dispose of all or any part of its property or assets to the extent such conveyance, sale, lease or other disposition is prohibited by the terms of the Senior Notes Subordinated Credit Agreement. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (2012); (iiiunless sold to Holdings or any of its Subsidiaries) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment shall be sold free and clear of Term Loans pursuant the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Vertis Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) sell, lease or otherwise dispose of any other assets, PROVIDED that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (ii) shall not exceed $5,000,000 in any four consecutive fiscal quarters of the Borrower;
(iii) investments may be made to the extent permitted by Section 8.49.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(civ) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04 (vii));
(dv) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiaryand consistent with past practices;
(evi) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale);
(fvii) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent licenses or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of sublicenses by the Borrower and its Subsidiaries of software, trademarks and other intellectual property in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value ordinary course of all business and which do not materially interfere with the assets then proposed to be disposed business of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower Holdings and its Subsidiaries taken as of the end of the immediately preceding Fiscal Quarter for which a whole or the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertypermitted;
(jviii) the Acquisition shall be permitted; and
(ix) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Domestic Wholly-Owned Subsidiary of the Borrower (other than (I) may transfer assets or lease to or acquire or lease assets from the Borrower or a any other Domestic Subsidiary to a Foreign Wholly-Owned Subsidiary or (II) to a Receivables Subsidiary);
(k) any Domestic Wholly-Owned Subsidiary may be merged into the Borrower or any other Domestic Wholly-Owned Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) Borrower. To the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers extent the Required Banks waive the provisions of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets this Section 9.02 with respect to the Issuersale of any Collateral, in each case pursuant or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to the Receivables Documents under Holdings or a Permitted Accounts Receivables Securitization;
(mSubsidiary of Holdings) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower shall be sold free and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% clear of the Net Sale Proceeds therefrom are used within 90 days Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant take any actions deemed appropriate in order to Section 4.3effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The ------------------------------------------------------- Borrower will not, and will not permit any of its the Borrower's Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inven tory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) the Borrower and each of its Subsidiaries may in the ordinary course of business, sell or otherwise dispose of equipment and materials which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of the Borrower and each of its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation unless permitted by Section 9.04(iii));
(dv) the Borrower and each of its Subsidiaries may make sales of inventory in the ordinary course of business;
(vi) each of the Borrower and its Subsidiaries may make sales sell other assets (other than less than all of the capital stock of any Subsidiary held by the Borrower and its Subsidiaries) so long as (i) no Default or transfers Event of inventoryDefault then exists or would result therefrom, Cash(ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, Cash Equivalents as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and Foreign Cash Equivalents is received at the time of the consummation of such sale and (iv) the amount of the proceeds received from the assets sold pursuant to this clause (vi) shall not exceed (A) $10,000,000 per such sale (or in a series of related sales) and (B) $25,000,000 in the ordinary course aggregate for all such sales in any fiscal year of business other than to a Receivables Subsidiarythe Borrower;
(evii) each of the Borrower and its Subsidiaries may sell other assets (other than less than all of the capital stock of any Subsidiary held by the Borrower and its Subsidiaries) so long as (i) no Default or discountEvent of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is received at the time of the consummation of such sale, (iv) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (vii) shall not exceed $35,000,000 in any fiscal year of the Borrower and (v) the Net Sale Proceeds therefrom are either applied as provided in Section 4.02(d) or reinvested in assets to the extent permitted by Section 4.02(d);
(viii) any of the Borrower's Subsidiaries may acquire or construct Hotel Properties (including by purchasing the capital stock or partnership interests of the Person or Persons that own such Hotel Properties);
(ix) the Borrower may transfer assets to a Subsidiary Guarantor, and any Wholly-Owned Subsidiary of the Borrower may merge with and into any Subsidiary Guarantor which is a Wholly-Owned Subsidiary, in each case without recourse so long as the respective Subsidiary Guarantor is the surviving corporation of any such merger;
(x) each of the Borrower and its Subsidiaries may grant leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
(xi) each of the Borrower and its Subsidiaries may, in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overduelicense, as licensor or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its licensee, patents, trade secretstrademarks, copyrights and know-how to third Persons and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower one another so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to license by the Borrower or any other WhollyCredit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-Owned Subsidiary how is granted thereunder) and does not otherwise prohibit the granting of the Borrower (other than (I) from a Lien by the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case Credit Party pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) Security Agreement in the Borrower and its Subsidiaries may consummate intellectual property covered by such license. To the US Commodity Business Sale provided that not less than 75% extent the Required Banks or all of the Net Sale Proceeds therefrom are used within 90 days Banks, as the case may be, waive the provisions of this Section 9.02 with respect to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment the sale of Term Loans pursuant any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 9.02, such Collateral shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than sales of inventory in the ordinary course of business), with respect to or enter into any such transaction involving all sale-leaseback transactions, or substantially all purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the Borrower, enter into an agreement ordinary course of business) of any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted (excluding Capital Expenditures which may arise as a result of the purchase of any capital stock or other Equity Interests in any, or the assets constituting any, Acquired Entity or Business, which Capital Expenditures may only be made pursuant to Permitted Acquisitions effected in accordance with the extent permitted by Section 8.4relevant provisions of this Agreement);
(bii) the Borrower and its Subsidiaries may sell, convey or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.710.05;
(civ) the Borrower and its Subsidiaries may sell assets (excluding the capital stock or other Equity Interests of the Borrower or any Subsidiary of the Borrower, unless all of the capital stock or other Equity Interests of such Subsidiary of the Borrower are sold in accordance with this clause (iv)), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (x) the consideration received by the Borrower or such Subsidiary consists of at least 75% cash or Cash Equivalents and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(d) and (z) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $2,000,000 in any fiscal year of Holdings (for this purpose, using the Fair Market Value of property other than cash);
(v) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04(iv));
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fvii) each of the Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and its Subsidiaries, in each case so long as no such license shall (i) transfer ownership of such Technology to any other Person grant otherwise affects the Collateral Agent’s security interest in the asset or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)property subject thereto;
(gA) the Borrower may convey, sell or otherwise transfer assets to one or more Wholly-Owned Domestic Subsidiaries of the Borrower that are Subsidiary Guarantors and (B) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged convey, sell or consolidated (x) with otherwise transfer all or into any part of its business, properties and assets to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower that is a Subsidiary Guarantor, provided that any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken;
(ix) any Subsidiary of the Borrower may merge or consolidate with and into, or be dissolved or liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving entityor continuing corporation of any such merger, consolidation, dissolution or liquidation, (yii) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (in all other than an Unrestricted Subsidiarycases, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Domestic Subsidiary or Subsidiaries shall be of the Borrower which is a Subsidiary Guarantor is the surviving entity or continuing Person of any such merger, consolidation, dissolution or liquidation, and (ziii) with or into any Person security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in connection with the consummation assets of an Acquisition; provided, however, that after giving such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger merger, consolidation, dissolution or consolidation liquidation) and all actions required to maintain said perfected status have been taken;
(x) any Foreign Subsidiary of the surviving Subsidiary shall Borrower may be a merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned SubsidiaryForeign Subsidiary of the Borrower, so long as (i) such Wholly-Owned Foreign Subsidiary of the Borrower is the surviving or continuing Person of any such merger, consolidation, amalgamation, dissolution or liquidation and (ii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests of such Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken;
(hxi) Permitted Acquisitions may be consummated in accordance with the requirements of Section 9.15;
(xii) the Borrower and its Subsidiaries may sell, transfer convey or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used Cash Equivalents in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions ordinary course of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuerbusiness, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitizationfor cash at Fair Market Value;
(mxiii) Foreign Subsidiaries the Borrower may enter into Foreign Factoring Transactions; andconsummate the Acquisition;
(nxiv) the Borrower and its Subsidiaries may consummate unwind any Interest Rate Protection Agreement or Other Hedging Agreement pursuant to its terms; and
(xv) the US Commodity Business Sale provided that not less Borrower and its Subsidiaries may dispose of Investments in joint ventures otherwise permitted hereunder to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (other than 75% to Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Net Sale Proceeds therefrom are used within 90 days Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant take any actions deemed appropriate in order to Section 4.3effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower REIT will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures (including payments in respect of Capitalized Lease Obligations) by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by Section 8.4not in violation of Sections 8.01(vii)(B) and 8.07;
(bii) the Borrower and each of its Subsidiaries may in the ordinary course of business, (x) sell or otherwise dispose of equipment and materials which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business and (y) sell or exchange other items of equipment and materials so long as the purpose of each such sale or exchange is to acquire (and results within 30 days of such sale or exchange in the acquisition of) replacement items of equipment or materials which are the functional equivalent of the item of equipment or material so sold or exchanged and is at least of equivalent value and quality;
(iii) Investments may be made to the extent permitted by Section 8.78.05;
(civ) each of the Borrower and each of its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation unless permitted by Section 8.01(vii)); provided that Leaseholds of Borrowing Base Properties which do not constitute Capitalized Lease Obligations shall be permitted (x) with respect to a Receivables Subsidiarythe Initial Borrowing Base Properties and Mortgage Loan Properties securing the Initial Borrowing Base Pledged Mortgage Loans that are Leaseholds and (y) with respect to subsequently acquired Borrowing Base Properties and the Mortgage Loan Properties securing subsequently acquired Borrowing Base Pledged Mortgage Loans, to the extent provided in Section 8.02(viii);
(dv) each of the Borrower and each of its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and inventory in the ordinary course of business, Accounts Receivable arising ;
(vi) the Borrower and each of its Subsidiaries may sell Borrowing Base Pledged Mortgage Loans and Borrowing Base Properties (or in the ordinary course case of business a Borrowing Base Property owned or leased by a Subsidiary of the Borrower, all of the capital stock or other equity interests of the respective Subsidiary which owns such Borrowing Base Property) so long as (xi) which are overdueno Default or Event of Default then exists or would result therefrom, or (yii) which each such sale is at fair market value (as determined in good faith by the general partner of the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(fSubsidiary), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.the total cash consideration received by the
Appears in 1 contract
Samples: Credit Agreement (Eldertrust)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) sell, lease or otherwise dispose of any other assets, provided that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (y) shall not exceed $10,000,000 in any calendar year;
(iii) investments may be made to the extent permitted by Section 8.49.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(civ) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04);
(dv) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than and consistent with past practices (including without limitation sales or transfers of inventory by the Borrower to a Receivables Subsidiaryits Subsidiaries);
(evi) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablesreceivables not otherwise permitted under clause (xi) below);
(fvii) transfers of condemned property to the respective governmental authority or agency that has condemned same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement, shall be permitted;
(viii) licenses or sublicenses by the Borrower and its Subsidiaries may license its patentsof software, trade secrets, know-how trademarks and other intellectual property relating to in the manufacture ordinary course of chemical products business and by-products (which do not materially interfere with the “Technology”) provided that such license business of the Borrower, the Borrower and its Subsidiaries taken as a whole or Holdings and its Subsidiaries taken as a whole shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)permitted;
(gix) the Installment Notes Trust shall be permitted to exist;
(x) the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower (may transfer assets or lease to or acquire or lease assets from the Borrower or any other than a Receivables Subsidiary) Domestic Wholly-Owned Subsidiary of the Borrower, or any Domestic Wholly-Owned Subsidiary of the Borrower may be merged or consolidated (x) with or into the Borrower so (as long as the Borrower is the surviving entitycorporation of such merger as a Wholly-Owned Subsidiary of Parent) or any other Domestic Wholly-Owned Subsidiary of the Borrower; provided that the aggregate amount (taking the Fair Market Value) of such transfers of assets (exclusive of assets transferred to the Intellectual Property Subsidiary, or by the Intellectual Property Subsidiary to the Second Tier IP Subsidiary, as contemplated by clauses (x) and (y) with or into any one or more of the definition of Intellectual Property Subsidiary) made to Domestic Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiaryafter the Original Effective Date shall not exceed 15% of Consolidated Total Assets as of December 31, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary1995;
(hxi) the Borrower sales, contributions and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the IssuerReceivables Subsidiary and sales and other transfers of Receivables Facility
(xii) so long as no Default or Event of Default exists at the time of the respective sale of assets or immediately after giving effect thereto, sales of assets (which may include interests in each case Subsidiaries and in joint ventures; provided that no part of the capital stock of any Subsidiary may be sold pursuant to this clause (xii) unless all of the Receivables Documents under capital stock of the respective Subsidiary owned by Holdings and its Subsidiaries is sold pursuant to such a Permitted Accounts Receivables Securitizationsale) of up to 5% of Consolidated Total Assets, as determined on the last day of any calendar year, may be made in the immediately succeeding calendar year; provided that (a) the sale price with respect to each such asset sold shall not be less than the Fair Market Value of such asset and (b) at least 80% of such sale price shall be payable only in cash or in Cash Equivalents;
(mxiii) Foreign Subsidiaries Holdings may enter liquidate any inactive Subsidiary so long as it has reasonably determined that neither it, nor any Subsidiary of Holdings into Foreign Factoring Transactions; andwhich such inactive Subsidiary is liquidated, will assume any material contingent liabilities as a result thereof;
(nxiv) Permitted Acquisitions shall be permitted to be made in accordance with the requirements of Section 8.13;
(xv) any Foreign Subsidiary of the Borrower which is a Wholly-Owned Subsidiary of the Borrower may merge with or into any other Foreign Subsidiary of the Borrower which is also a Wholly-Owned Subsidiary of the Borrower;
(xvi) the Borrower and its Subsidiaries may consummate sell the US Commodity Business Sale provided that not less than 75% assets or capital stock of Howmet Refurbishment, Inc. so long as the Net Sale Proceeds therefrom thereof are used within 90 days applied to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant as provided in Section 4.02(e), provided that so long as no Default or Event of Default then exists, the Borrower may make an intercompany loan to Parent (I) in a principal amount not to exceed the lesser of (x) the amount of such Net Sale Proceeds and (y) the maximum amount permitted to be so loaned under the terms of the Senior Subordinated Note Indenture, and (II) only to the extent the proceeds of such intercompany loan are promptly applied to repurchase, redeem or otherwise retire outstanding Parent PIK Subordinated Notes as provided in Section 4.39.11(ii) (it being understood and agreed that any portion of such intercompany loan not so used to repurchase, redeem or otherwise retire outstanding Parent PIK Subordinated Notes within 45 days of the making of such intercompany loan shall be repaid to the Borrower and applied to repay Term Loans as provided in Section 4.02(e)(without regard to clause (v) of the parenthetical therein)), provided that one
(xvii) Howmet Insurance may release to Pechiney S.A. its $250,000 cash balance deposit (or any portion thereof), to the extent such deposit is owned by Howmet Insurance, held by the Vermont Department of Banking Insurance, Securities and Health Care Administration (the "Insurance Department") so long as Pechiney S.A. concurrently substitutes a letter of credit, in a stated amount equal to such released amount, issued for the benefit of the Insurance Department. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to Holdings or a Subsidiary of Holdings) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Howmet Corp /New/)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Such ------------------------------------------------------- Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger merger, amalgamation or consolidation, or nor convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time time) all or any part of its property or assets (including, without the Administrative Agent’s prior written consent unless the effectiveness limitation, stock of such agreement is conditional upon the consent of the Administrative Agentany Subsidiary), or nor enter into any Sale partnerships, joint ventures or sale-leaseback transactions, nor purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions by such Borrower or such Subsidiary of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except thatexcept:
(a) Restricted Payments may be made to the extent Capital Expenditures permitted by Section 8.4subsection 8.7;
(b) Investments may be made to sales of inventory and other assets in the extent permitted by Section 8.7ordinary course of business;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiaryinvestments permitted by subsection 8.5;
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables SubsidiaryPermitted Acquisitions;
(e) so long as prior to and after giving effect thereto, there shall not be a Default or Event of Default in existence, (i) the Borrower purchase of the Travelers Corporation Building Archives, provided that the aggregate -------- consideration paid in connection therewith shall not exceed US$6,000,000, (ii) the consummation of the Xxxxx Transaction, provided that the aggregate -------- consideration paid in connection therewith shall not exceed US$3,000,000 and its Subsidiaries may sell or discount, in each case without recourse and (iii) other purchases of real property in the ordinary course of business, Accounts Receivable arising in provided that the ordinary course aggregate consideration paid -------- during any fiscal year of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only Company in connection with the compromise or collection thereof consistent all such other purchases (excluding any purchases in connection with customary industry practice (and a Permitted Acquisition) shall not as part of any bulk sale or financing of receivables)exceed US$7,500,000;
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual Dispositions of property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall assets (i) transfer ownership of such Technology to any other Person which do not exceed US$2,500,000 in the aggregate or (ii) require with respect to which (x) the Borrower Company or a Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to pay any fees for any the fair market value thereof; (y) not less than 85% of such use consideration is in the form of cash; and (such licenses permitted by this Section 8.3(fz) the Net Proceeds thereof are applied in accordance with subsections 4.4(b), hereafter “Permitted Technology Licenses”(g) and (h);
(g) any Subsidiary leases (as lessee) of the Borrower real or personal property (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRICsuch lease does not create Capitalized Lease Obligations); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its mergers, consolidations or amalgamations of one or more Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, with and into the Borrower Company or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign another Subsidiary or (IIii) to a Receivables Subsidiary);
(k) in which any Subsidiary of is the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up surviving or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactionsresulting company; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 1 contract
Samples: Credit Agreement (Pierce Leahy Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The ------------------------------------------------------- Borrower will not, and will not permit any member of its Subsidiaries the NEG Group to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its Property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets (other than purchases or other acquisitions of inventory in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except to the extent attendant to transactions described by the Business Plan and Leaseback Transaction, except that:
(ai) Restricted Payments any NEG Subsidiary may be made to in the extent permitted by Section 8.4ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business;
(b) Investments may be made to the extent permitted by Section 8.7;
(cii) each of the Borrower and its Subsidiaries any member of the NEG Group may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as any such lease does not create a Receivables SubsidiaryCapital Lease Obligation);
(diii) each of the Borrower and its Subsidiaries any NEG Subsidiary may make sales or transfers of inventory, Cash, Cash Equivalents energy and Foreign Cash Equivalents related products in the ordinary course of business other than to a Receivables Subsidiaryand consistent with past practices;
(eiv) the Borrower and its Subsidiaries any NEG Subsidiary may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale);
(fv) each of the Borrower and its Subsidiaries any member of the NEG Group may license its patentsor sublicense software, trade secrets, know-how trademarks and other intellectual property relating to in the manufacture ordinary course of chemical products and by-products (business which do not materially interfere with the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee business of the Administrative Agent without Borrower, LLC, NEG, Inc. and the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f)NEG Subsidiaries, hereafter “Permitted Technology Licenses”)taken as a whole;
(gvi) any Subsidiary each of the Borrower (Borrower, LLC, NEG, Inc. or any NEG Subsidiary may transfer assets or lease to or acquire or lease assets from the Borrower, LLC, NEG, Inc. or any other than a Receivables Subsidiary) NEG Subsidiary and LLC, NEG, Inc. or any NEG Subsidiary may be merged into LLC, NEG, Inc. or consolidated any other NEG Subsidiary;
(vii) any NEG Subsidiary may sell or otherwise dispose of additional assets, provided that (x) with each such sale or into disposition shall be for an -------- amount at least equal to the Borrower so long fair market value thereof (as determined in good faith by the Borrower is the surviving entitysenior management of such Person), (y) with or each such sale (other than any like-kind exchange) results in consideration at least 75% of which shall be in the form of cash (for such purpose, taking into account the amount of cash, the principal amount of any one or more Wholly-Owned Subsidiaries promissory notes and the fair market value, as determined in good faith by the senior management of the Borrower, of any other consideration), and (z) the Net Sale Proceeds therefrom shall be applied pursuant to Section 3.2;
(viii) subject to Section 3.2(f), each of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation and any member of the NEG Group may make transfers of any proceeds of insurance resulting from any casualty or IRIC)condemnation of property or assets; provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;and
(hix) the Borrower and its Subsidiaries may sell, transfer sell or otherwise dispose of any asset in connection with assets other than assets owned by any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% member of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3NEG Group.
Appears in 1 contract
Samples: Credit Agreement (Pg&e Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without time) all or any part of its property or assets (other than the Administrative Agent’s prior written consent unless liquidation of Cash Equivalents in the effectiveness ordinary course of such agreement is conditional upon the consent of the Administrative Agentbusiness), or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than (x) purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, and Leaseback Transactionintangible assets in the ordinary course of business and (y) transfers of cash, Cash Equivalents, equipment and inventory in the ordinary course of business among the Credit Parties) of any Person, except that:
(ai) Capital Expenditures by the Borrower and its Restricted Payments may Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07; -52- 58
(ii) the Borrower and its Restricted Subsidiaries may (w) in the ordinary course of business sublease any leased real property which, in the judgment of such Person, is no longer necessary in the conduct of such Person's business, provided that each such sublease shall be for fair market value, (x) in the ordinary course of business, sell, lease or otherwise dispose of any fixed assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) sell, lease or otherwise dispose of any other assets, provided that with respect to dispositions pursuant to clauses (x) and (y) each such sale, lease or disposition shall be for fair market value (other than with respect to sales, leases or dispositions in an aggregate amount not to exceed $100,000 per calendar year) and at least 75% of the consideration therefor shall be in the form of cash, and, provided further, that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to clauses (x) and (y) shall not exceed $5,000,000 in the aggregate after the Initial Borrowing Date and prior to the Maturity Date;
(biii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of the Borrower and its Restricted Subsidiaries may lease (as lessorlessee) real or personal property in (so long as any such lease does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04);
(dv) each of the Borrower and its Restricted Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory (x) in the ordinary course of business other than or (y) to any Domestic Wholly-Owned Subsidiary of the Borrower which is a Receivables SubsidiarySubsidiary Guarantor;
(evi) so long as (x) no Default or Event of Default exists or would result therefrom and (y) the Borrower's Leverage Ratio at the time of any such acquisition (and calculated on a Pro Forma Basis after giving effect to such acquisition and to any Indebtedness incurred, issued or assumed in connection therewith) is less than 4.25:1.00 (except to the extent set forth in the proviso to the definition of Available $25 Million Basket Amount), the Borrower and its Restricted Subsidiaries may acquire the capital stock of, or all or substantially all of the assets of, any Person (or any product line or division of such Person) or merge, consolidate or otherwise combine with another Person (so long as the Borrower, in the case of combinations involving the Borrower, or the Subsidiary, in other cases, is the surviving corporation), provided that the aggregate consideration (including the amount of any liabilities assumed but excluding any stock of the Borrower issued directly as consideration for such acquisition or merger) paid in connection with any acquisition or merger pursuant to this Section 9.02(vi) does not exceed (A) the then Available $25 Million Basket Amount on such date (after giving effect to all prior and contemporaneous reductions thereto, except as a result of such acquisition or merger), plus (B) the then Available Net Income Amount on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such acquisition or merger), plus (C) the then Available Unrestricted Proceeds Amount (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such acquisition or merger), it being understood and agreed that at the time of any acquisition or merger pursuant to this clause (vi), the Borrower shall allocate the amount of the aggregate consideration therefor (as described above) as constituting a utilization of one or more of the basket amounts described in preceding clauses (A), (B) and (C), with the aggregate amount of such utilizations to equal the aggregate consideration as described above;
(vii) the Borrower may sell or discountotherwise dispose of any shares of capital stock of any Unrestricted Subsidiaries owned by it;
(viii) so long as no Default or Event of Default exists or would result therefrom, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such any Domestic Wholly-Owned Subsidiary which is a Credit Party may reasonably determine are difficult to collect but only in connection be merged into or consolidated with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (ycorporation of such combination) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Domestic Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisitionwhich is a Credit Party; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;and
(hix) so long as no Default or Event of Default exists or would result therefrom, the Borrower and its Subsidiaries may sell, transfer or otherwise dispose assets of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Restricted Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets be disposed of by the Borrower merger or consolidation of such Restricted Subsidiary with and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus into another Person or by the aggregate net book value sale of all the assets then proposed to be disposed of does not exceed 12.5100% of the Consolidated Net Tangible Assets capital stock of such Restricted Subsidiary (in which event the Borrower assets of such Restricted Subsidiary shall no longer serve as Collateral for the Obligations and its Subsidiaries as shall be released from the Liens of the end Security Documents, and such Restricted Subsidiary shall be released from liability for the Obligations), provided that such merger, consolidation or stock sale, if completed as a sale of other assets, would be permissible under Section 9.02(ii)(y). To the immediately preceding Fiscal Quarter for which extent the Borrower has delivered financial statements as provisions of this Section 9.02 restrict the sale or other disposition of any Collateral but the Required Banks (or all Banks to the extent required by Section 7.1; provided13.12) waive such provisions in writing with respect to such sale or other Disposition, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds extent with respect to any Collateral is sold or otherwise disposed of as permitted by this Section 9.02, such disposition are used by Collateral (unless sold to the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other propertyBorrower) shall be disregarded for purposes sold or otherwise disposed of calculations pursuant to this Section 8.3(i) (free and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary clear of the Borrower may sellLiens created by the Security Documents, lease, transfer or otherwise dispose of and the Agent and Collateral Agent shall be authorized to take any or all of its assets actions deemed appropriate in order to effect the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The ------------------------------------------------------- Borrower will not, and will not permit any of its the Borrower's Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) the Borrower and each of its Subsidiaries may in the ordinary course of business, sell or otherwise dispose of equipment and materials which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of the Borrower and each of its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation unless permitted by Section 9.04(iii));
(dv) the Borrower and each of its Subsidiaries may make sales of inventory in the ordinary course of business;
(vi) each of the Borrower and its Subsidiaries may make sales sell other assets (other than less than all of the capital stock of any Subsidiary held by the Borrower and its Subsidiaries) so long as (i) no Default or transfers Event of inventoryDefault then exists or would result therefrom, Cash(ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, Cash Equivalents as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and Foreign Cash Equivalents is received at the time of the consummation of such sale and (iv) the amount of the proceeds received from the assets sold pursuant to this clause (vi) shall not exceed (A) $10,000,000 per such sale (or in a series of related sales) and (B) $25,000,000 in the ordinary course aggregate for all such sales in any fiscal year of business other than to a Receivables Subsidiarythe Borrower;
(evii) each of the Borrower and its Subsidiaries may sell other assets (other than less than all of the capital stock of any Subsidiary held by the Borrower and its Subsidiaries) so long as (i) no Default or discountEvent of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is received at the time of the consummation of such sale, (iv) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (vii) shall not exceed $35,000,000 in any fiscal year of the Borrower and (v) the Net Sale Proceeds therefrom are either applied as provided in Section 4.02(e) or reinvested in assets to the extent permitted by Section 4.02(e);
(viii) any of the Borrower's Subsidiaries may acquire or construct Hotel Properties (including by purchasing the capital stock or partnership interests of the Person or Persons that own such Hotel Properties);
(ix) the Borrower may transfer assets to a Subsidiary Guarantor, and any Wholly-Owned Subsidiary of the Borrower may merge with and into any Subsidiary Guarantor which is a Wholly-Owned Subsidiary, in each case without recourse so long as the respective Subsidiary Guarantor is the surviving corporation of any such merger;
(x) each of the Borrower and its Subsidiaries may grant leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries; and
(xi) each of the Borrower and its Subsidiaries may, in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overduelicense, as licensor or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its licensee, patents, trade secretstrademarks, copyrights and know-how to third Persons and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower one another so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to license by the Borrower or any other WhollyCredit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that the security interest in such patents, trademarks, copyrights and know-Owned Subsidiary how is granted thereunder) and does not otherwise prohibit the granting of the Borrower (other than (I) from a Lien by the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case Credit Party pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) Security Agreement in the Borrower and its Subsidiaries may consummate intellectual property covered by such license. To the US Commodity Business Sale provided that not less than 75% extent the Required Banks or all of the Net Sale Proceeds therefrom are used within 90 days Banks, as the case may be, waive the provisions of this Section 9.02 with respect to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment the sale of Term Loans pursuant any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 9.02, such Collateral shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business or sales of goods that have become worn-out, obsolete or damaged and as a result are unsuitable for use in connection with the business of the Borrower and its Subsidiaries;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) the Borrower and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Subsidiary that is less than all of the Equity Interests in such Subsidiary that are owned by the Borrower and its Subsidiaries), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) at least 90% of the Total Consideration received by the Borrower or such Subsidiary consists of cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(e) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $5,000,000 in any fiscal year of the Borrower;
(v) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(iii));
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale financing transaction;
(vii) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or financing subleases to other Persons not materially interfering with the conduct of receivablesthe business of the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent's security interest in the asset or property subject thereto;
(viii) any Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving corporation of any such merger, dissolution or liquidation, (ii) in all other cases, the Wholly-Owned Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, and (iii) in all cases, the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(fix) Permitted Acquisitions may be made to the extent permitted by Section 8.17;
(x) sales, transfers and dispositions by the Borrower or any Wholly-Owned Domestic Subsidiary Guarantor (other than RCN International) to the Borrower or a Wholly-Owned Domestic Subsidiary Guarantor (other than RCN International) shall be permitted;
(xi) sales, transfers and other dispositions of the Equity Interests of Intertainer shall be permitted so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (y) at least 90% of the Total Consideration received by the Borrower and its Subsidiaries consists of cash paid at the time of the closing of such sale or disposition and (z) the Net Sale Proceeds therefrom are applied to prepay Loans pursuant to Section 4.02(e);
(xii) the sale, transfer or other disposition of all or substantially all the Los Angeles Assets in a single transaction or series of related transactions shall be permitted, so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (y) at least 90% of the Total Consideration received by the Borrower and its Subsidiaries consists of cash paid at the time of the closing of such sale or disposition and (z) the Net Sale Proceeds therefrom are applied to prepay Loans pursuant to Section 4.02(e);
(xiii) the sale, transfer or other disposition of all or substantially all the San Francisco Assets in a single transaction or series of related transactions shall be permitted, so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (y) at least 90% of the Total Consideration received by the Borrower and its Subsidiaries consists of cash paid at the time of the closing of such sale or disposition and (z) the Net Sale Proceeds therefrom are applied to prepay Loans pursuant to Section 4.02(e);
(xiv) the sale, transfer or other disposition of all or substantially all the Chicago Assets in a single transaction or series of related transactions shall be permitted, so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (y) at least 90% of the Total Consideration received by the Borrower and its Subsidiaries consists of cash paid at the time of the closing of such sale or disposition and (z) the Net Sale Proceeds therefrom are applied to prepay Loans pursuant to Section 4.02(e);
(xv) the Borrower may consummate the Starpower Acquisition;
(xvi) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how make a sale of any fixed or capital assets that is made for cash consideration in an amount not less than the cost of such fixed or capital asset and is consummated within 270 days after the Borrower or such Subsidiary acquires or completes the construction of such fixed or capital asset and thereafter rent or lease such property or other intellectual property relating that it intends to use for substantially the manufacture of chemical products and by-products (same purpose as the “Technology”) sold property; provided that such license shall be assignable to the Administrative Agent or any assignee sum of the Administrative Agent without the consent aggregate amount of the licensee Attributable Debt in respect of all such sale and no such license shall (i) transfer ownership leaseback transactions of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sellshall not exceed $3,000,000 at any time outstanding;
(xvii) the sale, transfer or otherwise dispose other disposition of any asset all or substantially all of the Non-Core Assets in connection with any Sale a single transaction or series of related transactions shall be permitted, so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm's-length transaction and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any the respective Subsidiary may dispose receives at least Fair Market Value, (y) at least 90% of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of Total Consideration received by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus consists of cash paid at the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% time of the Consolidated closing of such sale or disposition and (z) the Net Tangible Assets Sale Proceeds therefrom are applied to prepay Loans or, in the Borrower and its Subsidiaries as case of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, leasesale, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary disposition of the Borrower (other than (I) from the Borrower New York Microwave Subscribers, prepay Loans or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuerreinvested, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables SecuritizationSection 4.02(e);
(mxviii) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
the sale, transfer or other disposition of all or substantially all of the Dial-Up Assets in a single transaction shall be permitted, so long as (nu) no Default or Event of Default then exists or would result therefrom, (v) such sale in consummated on or prior to December 31, 2009, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (x) at least 90% of the Total Consideration received by the Borrower and its Subsidiaries may consummate consists of cash paid at the US Commodity Business Sale provided that not less than 75% time of the closing of such sale or disposition, (y) the cash consideration received by the Borrower and its Subsidiaries pursuant to the immediately preceding clause (x) exceeds the present value (computed using a discount rate equal to the Treasury Rate) of the future cash contribution of such assets as set forth in the detailed financial model delivered by the Borrower to the Administrative Agent prior to the Initial Borrowing Date and (z) the Net Sale Proceeds therefrom are used within 90 days applied to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term prepay Loans pursuant to Section 4.3.4.02(e); and
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale and Leaseback Transactionpartnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets of any Person except that:
(ai) Restricted Payments may be made to the extent permitted by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may sell and lease (as lessor) real or personal property inventory, materials and equipment in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(eii) the Borrower and its Subsidiaries may sell or discountotherwise dispose of any assets which, in each case without recourse the reasonable judgment of such Person, have become uneconomical, obsolete or worn out;
(iii) Existing Permitted Sale Leasebacks shall be permitted;
(iv) Additional Permitted Sale Leasebacks shall be permitted; provided that the aggregate amount of proceeds thereof, together with the proceeds of any Additional Permitted Mortgage Financing, shall not exceed $25,000,000;
(v) the Borrower and in the ordinary course Guarantors may transfer assets among themselves;
(vi) any wholly-owned Subsidiary of business, Accounts Receivable arising in the ordinary course Borrower may merge and consolidate with any other wholly-owned Subsidiary of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with into the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)Borrower;
(fvii) the Borrower and its Subsidiaries may license its patentslease or sublease portions of their respective properties, trade secretsand deal with such leases and subleases and the tenants thereunder, know-how and including, without limitation, the cancellation, termination, amendment or other intellectual property relating to modification thereof, in the manufacture ordinary course of chemical products and by-products business in a manner consistent with past practices;
(the “Technology”viii) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower and any Guarantor may acquire Reinvestment Assets with the proceeds from any Reinvestment Event which are not required to pay any fees for any such use (such licenses permitted by this reduce the Total Commitment pursuant to Section 8.3(f), hereafter “Permitted Technology Licenses”3.03(f);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(hix) the Borrower and its Subsidiaries may sellpurchase inventory, transfer or otherwise dispose materials and equipment in the ordinary course of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunderbusiness;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nx) the Borrower and its Subsidiaries may consummate enter into operating leases in the US Commodity Business Sale ordinary course of business;
(xi) the Borrower and its Subsidiaries may make Capital Expenditures to the extent permitted under Section 10.09;
(xii) the Borrower and its Subsidiaries may dispose of any assets in connection with the 1997 Restructuring Program;
(xiii) in addition to any other sales or transfers of assets permitted by this Section 10.02, the Borrower and the Subsidiaries may sell or transfer assets; provided that the aggregate fair market value of such assets sold or transferred (excluding any assets sold in connection with the 1997 Restructuring Program) does not less than 75% exceed $75,000,000 in any fiscal year of the Net Sale Proceeds therefrom are used within 90 days Borrower;
(xiv) the Borrower or a Guarantor may enter into transactions permitted under Section 10.03;
(xv) the Credit Card Subsidiaries may sell or transfer receivables in conjunction with the Credit Card Program;
(xvi) the Credit Card Subsidiaries may purchase receivables and related assets in connection with the Credit Card Program; and
(xvii) the Borrower and the Guarantors may acquire assets, make Investments and enter into other transactions to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment the extent permitted under Section 10.12. To the extent that any Collateral is sold or otherwise disposed of Term Loans pursuant as permitted under this Section 10.02, or the Required Banks waive any restriction or limitation of this Section 10.02 in connection with any sale or disposition of Collateral, such Collateral shall be transferred free and clear of the Liens created by the Security Documents, and the Collateral Agent shall be authorized to Section 4.3execute and deliver such releases and other instruments, and to take such other action, as it deems appropriate in connection therewith.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by Holdings and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary;
(dii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(eiii) each of the Borrower and its Subsidiaries may sell damaged, obsolete or worn-out assets that are no longer necessary for the proper conduct of their respective business for fair market value and in the ordinary course of business;
(iv) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice thereof;
(v) each of the Borrower and not as part its Subsidiaries may sell or otherwise transfer in an arm's-length transaction to a Developer of any bulk sale or financing of receivablesa Development Site constituting a Development Investment permitted under Section 9.05(xiv);
(fvi) each of the Borrower and its Subsidiaries may sell or otherwise dispose of other assets in an aggregate amount not to exceed $200,000 per sale or other disposition or series of related sales or other dispositions, provided that the aggregate value of all such sales or other dispositions pursuant to this clause (vi) shall not exceed $2,000,000 in any fiscal year of the Borrower;
(vii) each of the Borrower and its Subsidiaries may sell stores which are no longer useful to the business of the Borrower and its Subsidiaries, provided that the aggregate number of stores sold pursuant to this clause (vii) in any fiscal year of the Borrower shall not exceed five plus, for fiscal year 1998 and each fiscal year of the Borrower thereafter, a number of stores equal to the difference between five and the number of stores sold under this clause (vii) in the immediately preceding fiscal year of the Borrower;
(viii) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”x) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall sell (i) transfer ownership of such Technology either or both the warehouse facility located at 0000 Xxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx and the garage connected to any other Person or Donna's Meat Facility located at 0000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx, (ii) require the warehouse described in Part (a) of Schedule XI, (iii) either or both the office building and print shop described in Part (a) of Schedule XI, and (iv) store number 92 described in Schedule III, (y) sell and concurrently lease-back the equipment described in Part (b) of Schedule XI and (z) sell other assets having an aggregate fair market value not in excess of $5,000,000 in any fiscal year, so long as in each case for preceding clauses (x), (y) and (z), (i) no Default or Event of Default then exists or would result therefrom, (ii) the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be) and (iii) the total consideration received by the Borrower or such Subsidiary is at least 50% cash and is paid at the time of the closing of such sale;
(ix) Investments may be made to pay any fees for the extent permitted by Section 9.05;
(x) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property (so long as any such use (such licenses lease does not create a Capitalized Lease Obligation except to the extent permitted by this Section 8.3(f9.04(iv), hereafter “Permitted Technology Licenses”);
(gxi) each of the Borrower and its Subsidiaries may grant leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(xii) each of the Borrower and its Subsidiaries may consummate Permitted Sale-Leaseback Transactions;
(xiii) any Subsidiary of the Borrower (other than a Receivables Subsidiaryx) may be merged merged, consolidated or consolidated (x) liquidated with or into the Borrower so long as the Borrower is the surviving entitycorporation of such merger, consolidation or liquidation and (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower all or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);Borrower; and
(kxiv) any Subsidiary of the Borrower (other than a Receivables Subsidiaryx) may voluntarily liquidatebe merged, wind-up consolidated or dissolve;
(l) liquidated with or into any other Subsidiary of the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to so long as (i) repay Senior Secured Notes (2010); in the case of any such merger, consolidation or liquidation involving a Subsidiary Guarantor, the Subsidiary Guarantor is the surviving corporation of such merger, consolidation or liquidation and (ii) repay Senior Notes in addition to the requirements of preceding clause (2012i); , in the case of any such merger, consolidation or liquidation involving a Wholly-Owned Subsidiary of the Borrower, the Wholly-Owned Subsidiary is the surviving corporation of such merger, consolidation or liquidation, (iiiy) repay Receivables Facility Attributed Indebtedness and/or may transfer all or any portion of its assets to any Subsidiary Guarantor and (ivz) make may, so long as such Subsidiary is not a voluntary prepayment Subsidiary Guarantor, (i) be merged, consolidated or liquidated with or into any other Subsidiary of Term Loans pursuant the Borrower that is not a Subsidiary Guarantor and (ii) transfer all or any portion of its assets to Section 4.3any other Subsidiary of the Borrower that is not a Subsidiary Guarantor.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower No Credit Agreement Party will, nor will notany Credit Agreement Party permit any of its Subsidiaries to, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by Adience and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07(a), (b) and (c)(i);
(bii) the Borrowers and Adience and its Wholly-Owned Subsidiaries shall be permitted to make Permitted Acquisitions so long as (A) such Permitted Acquisitions are effected in accordance with the requirements of Section 8.16, (B) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for the purpose of this clause (ii) all cash consideration and the fair market value of any non-cash consideration, but excluding any Indebtedness (and any cash proceeds thereof paid as consideration) issued, incurred or assumed in connection with such Permitted Acquisition, but only if outstanding pursuant to clauses (x) and/or (xi) of Section 9.04) by Adience and its Subsidiaries in connection with such Permitted Acquisition shall not exceed the Permitted Acquisition Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition); and (B) with respect to each Permitted Acquisition, no Default or Event of Default is in existence at the time of the consummation of such Permitted Acquisition or would exist after giving effect thereto;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of the Borrower Adience and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04);
(dv) each of the Borrower Adience and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents inventory and Foreign Cash Equivalents services in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(evi) the Borrower each of Adience and its Subsidiaries may sell or discountequipment and other assets, to the extent not otherwise permitted under any other clause of this Section 9.02, at the fair market value thereof (as determined in each case without recourse good faith by management of Adience), provided that the proceeds thereof (x) shall consist of at least 80% in cash and (y) do not exceed $3,000,000 in the aggregate for all sales pursuant to this clause (vi) in any fiscal year;
(vii) Adience and its Subsidiaries may sell the Designated Assets at fair market value, provided that the proceeds thereof (x) shall consist of at least 80% in cash and (y) shall be used to make mandatory repayments pursuant to Section 4.02(e) in accordance with the terms thereof;
(viii) Adience and its Subsidiaries may, in the ordinary course of business, Accounts Receivable arising license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Adience or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Adience or any of its Subsidiaries pursuant to the Security Documents in the intellectual property covered by such license;
(ix) Adience and its Subsidiaries may from time to time, in the ordinary course of business dispose of obsolete, worn-out or outmoded equipment, so long as the respective such sales are for fair market value (as determined by Adience) and the proceeds thereof are used within one year after the date of the respective such sale to purchase replacement equipment; provided that if for any reason, and to the extent, any Net Sale Proceeds are not so utilized on or before the first anniversary of the date of the respective such sale, then on such date any Net Sale Proceeds not so used shall be applied as required by Section 4.02(e); and
(x) which are overduethe Acquisition shall be permitted to be made on the Initial Borrowing Date, and the Post-Closing Restructuring shall be permitted (and required) to be consummated within 150 days thereafter. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not any Collateral is sold as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f)9.02, hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower in each case so long as the Borrower respective sale is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (to a Person other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation a Credit Agreement Party or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale Subsidiaries, such Collateral shall be sold free and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if clear of the aggregate net book value (at the time of disposition thereof) of all assets disposed of Liens created by the Borrower Security Documents, and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all Administrative Agent and the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) Collateral Agent shall be disregarded for purposes of calculations pursuant authorized to this Section 8.3(i) (and shall otherwise be take any actions deemed appropriate in order to be permitted under this Section 8.3) from and after effect the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets, including property acquired by way of trade or barter agreements, in the ordinary course of business) of any Person, except that:
(i) the Borrower and its Subsidiaries may make Capital Expenditures to the extent not in violation of Section 9.07;
(ii) the Borrower and its Subsidiaries may sell, lease or otherwise dispose of any assets, provided that (a) Restricted Payments the aggregate Net Asset Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (ii) shall not exceed $25,000,000 in any transaction or series of related transactions, and (b) each such disposition is for fair market value;
(iii) the Borrower and its Subsidiaries may be made sell, lease, transfer, convey or otherwise dispose of property, equipment or any other asset that is (a) obsolete or worn out or (b) no longer useful or necessary in the operation of the business of such Person;
(iv) the Borrower and its Subsidiaries may make Investments to the extent permitted by Section 8.49.05;
(bv) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation not otherwise permitted by Section 9.04(iii));
(dvi) each of the Borrower and its Subsidiaries may make sales sales, conveyances or transfers other dispositions of inventoryinventory in the ordinary course of business;
(vii) the Borrower and its Subsidiaries may transfer, Cashlicense or sublicense software, Cash Equivalents trademarks, patents and Foreign Cash Equivalents other Intellectual Property in the ordinary course of business other than to a Receivables and which does not materially interfere with the business of the Borrower or any Subsidiary;
(eviii) the Borrower or any Subsidiary Guarantor may transfer assets to, lease assets to or acquire or lease assets from the Borrower or any other Subsidiary Guarantor (so long as the security interests granted pursuant to the Security Documents are not, in the reasonable judgment of the Collateral Agent, adversely affected thereby) or any Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, the Borrower or any Subsidiary Guarantor (so long as the Borrower or such Subsidiary Guarantor is the surviving corporation);
(ix) the Borrower and its Subsidiaries may sell or discount, in each case without recourse (except for customary indemnities, representations, warranties and agreements) and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overdue, overdue or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect collect, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(fx) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how make Permitted Acquisitions so long as such Permitted Acquisitions are effected in accordance with Section 8.13; and
(xi) the Borrower may liquidate and other intellectual property relating dissolve Subsidiaries which are not Material Subsidiaries. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the manufacture sale of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent any Collateral, or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses Collateral is sold as permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower 9.02 (other than a Receivables Subsidiaryto another Credit Party or pursuant to clause (viii) may hereof), such Collateral shall be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries sold free and clear of the Borrower (other than an Unrestricted SubsidiaryLiens created by the Security Documents, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; providedforegoing and shall, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% request of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; providedBorrower, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of take any such disposition are used actions reasonably appropriate to acquire such other property, then dispositions in an amount equal to effect the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than sales of inventory and grants of licenses in the ordinary course of business), with respect to or enter into any such transaction involving all sale-leaseback transactions, or substantially all purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, goods and services in the Borrower, enter into an agreement ordinary course of business) of any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Capital Expenditures by the Borrower and its Restricted Payments Subsidiaries shall be permitted;
(ii) the Borrower and its Restricted Subsidiaries may be made liquidate or otherwise dispose of obsolete or worn-out property or assets or property no longer used in the conduct of business of the Borrower and its Restricted Subsidiaries, in each case, in the ordinary course of business;
(iii) any merger or consolidation in connection with (x) Investments to the extent permitted by Section 8.4;
9.05 (bprovided that (i) Investments may in the case of a transaction the purpose of which is to designate a Subsidiary as an Unrestricted Subsidiary or re-designate an Unrestricted Subsidiary as a Restricted Subsidiary, such transaction must be made consummated in compliance with Section 8.13 and (ii) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent), (y) Liens to the extent permitted by in Section 8.79.01 and (z) Dividends to the extent permitted in Section 9.03;
(civ) the Borrower and its Restricted Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Restricted Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Restricted Subsidiary are sold in accordance with this clause (iv)), so long as (A) no Default or Event of Default then exists or would result therefrom, (B) each such sale is in an arm’s-length transaction and the Borrower or the respective Restricted Subsidiary receives at least Fair Market Value, (C) the consideration received by the Borrower or such Restricted Subsidiary consists of at least 75% cash and is paid at the time of the closing of such sale, (D) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(c) and (E) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iv) shall not exceed (I) $25,000,000 in any Fiscal Year of the Borrower or (II) $75,000,000 during the term of this Agreement;
(v) each of the Borrower and its Restricted Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(iv));
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Restricted Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fvii) each of the Borrower and its Restricted Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and its Restricted Subsidiaries, in each case so long as no such license shall (i) transfer ownership of such Technology to grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto in any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)material respect;
(gviii) the Borrower or any Restricted Subsidiary of the Borrower may convey, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor, so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken;
(ix) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may merge or consolidate with and into, or be merged dissolved or consolidated (x) with or into liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving entityor continuing entity of any such merger, consolidation, dissolution or liquidation, (yii) with in all other cases, a Person that is or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that becomes a Wholly-Owned Domestic Subsidiary or Subsidiaries shall be of the Borrower which is a Subsidiary Guarantor is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (iii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(x) any Foreign Subsidiary of the Borrower may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower, so long as such Wholly-Owned Foreign Subsidiary of the Borrower is the surviving or continuing entity of any such merger, consolidation, amalgamation, dissolution or liquidation;
(xi) (x) Permitted Acquisitions may be consummated in accordance with the requirements of Section 8.15,(y) the Borrower may dispose of Unrestricted Subsidiaries and (z) Investments may be consummated in accordance with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned SubsidiarySection 9.05;
(hxii) the Borrower and its Restricted Subsidiaries may sell, transfer liquidate or otherwise dispose of any asset Cash Equivalents in connection with any Sale and Leaseback Transaction involving Indebtednessthe ordinary course of business, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunderin each case for cash at Fair Market Value;
(ixiii) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Immaterial Subsidiary of the Borrower may sellbe wound up, lease, transfer liquidated or otherwise dispose dissolved if the Board of any or all Directors of its assets to such Immaterial Subsidiary shall determine in good faith that the Borrower or any other Wholly-Owned continued existence of such Immaterial Subsidiary is no longer desirable in the conduct of the business of the Borrower (other than (I) from and its Restricted Subsidiaries, and that the Borrower winding up, liquidation or a Domestic dissolution of such Immaterial Subsidiary is not disadvantageous in any material respect to a Foreign Subsidiary the Credit Parties or (II) to a Receivables Subsidiary)the Lenders;
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(lxiv) the Borrower and its Restricted Subsidiaries may, directly or indirectlymay convey, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets transfer or exchange equipment or Real Property to the Issuerextent that (x) such property is exchanged for credit against the purchase price of similar replacement property or (y) the proceeds of such conveyance, in each case pursuant sale or transfer are reasonably promptly applied to the Receivables Documents under a Permitted Accounts Receivables Securitizationpurchase price of such replacement property;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nxv) the Borrower and its Restricted Subsidiaries may consummate dispose of leases entered into in the US Commodity Business Sale provided that ordinary course of business to the extent such disposition does not less than 75% materially interfere with the business of the Net Sale Proceeds therefrom are used within 90 days Borrower and its Restricted Subsidiaries, taken as a whole;
(xvi) the Acquisition shall be permitted in accordance with the terms of the Acquisition Documents; and
(xvii) the Borrower may convey, sell, transfer or exchange the Shanghai Property. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (i) repay Senior Secured Notes (2010other than to the Borrower or a Restricted Subsidiary thereof); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness , such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3evidence the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any member of its Subsidiaries the NEG Group to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease lease, spin-off or otherwise dispose of (including, without limitation, cancellation of indebtedness owing to the Borrower by any of its properties Affiliate) (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time time) all or any part of its Property or assets (including, without limitation, the Administrative Agent’s prior written consent unless the effectiveness Capital Stock of such agreement is conditional upon the consent PGE Utility or any member of the Administrative AgentNEG Group), or enter into any Sale and Leaseback Transactionsale-leaseback transactions (any of the foregoing, a "Disposition"), or purchase or otherwise acquire (in one or a series of related transactions) any part of the Property or assets (other than purchases or other acquisitions of inventory in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
: (ai) Restricted Payments any NEG Subsidiary may be made to in the extent permitted by Section 8.4;
ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business; (b) Investments may be made to the extent permitted by Section 8.7;
(cii) each of the Borrower and its Subsidiaries any member of the NEG Group may lease (as lessorlessee) real or personal property in the ordinary course of business (so long as any such lease does not create a Capital Lease Obligation (other than to a Receivables Subsidiary;
Capital Lease Obligations permitted under Section 7.4)); (diii) each of the Borrower and its Subsidiaries any NEG Subsidiary may make sales or transfers of inventory, Cash, Cash Equivalents energy and Foreign Cash Equivalents related products in the ordinary course of business other than to a Receivables Subsidiary;
and consistent with past practices; (eiv) the Borrower and its Subsidiaries any NEG Subsidiary may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale sale); (v) each of the Borrower and any member of the NEG Group may license or financing sublicense software, trademarks and other intellectual property in the ordinary course of receivables);
(f) business which do not materially interfere with the business of the Borrower and its Subsidiaries may license its patentsSubsidiaries, trade secretstaken as a whole; (vi) each of LLC, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent NEG, Inc. or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) NEG Subsidiary may transfer ownership of such Technology assets or lease to or acquire or lease assets from LLC, NEG, Inc. or any other Person NEG Subsidiary and LLC, NEG, Inc. or any NEG Subsidiary may be merged into LLC, NEG, Inc. or any other NEG Subsidiary; (iivii) require the Borrower [OMITTED]; (viii) subject to pay any fees for any such use (such licenses permitted by this Section 8.3(f3.2(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary each of the Borrower and any member of the NEG Group may make transfers of any proceeds of insurance resulting from any casualty or condemnation of property or assets; (ix) the Borrower may sell or otherwise dispose of any assets other than a Receivables (A) except as permitted by Section 7.2(x), assets owned by, or the Capital Stock of, any member of the NEG Group and (B) the Capital Stock of PGE Utility or the Capital Stock of, or any substantial part of the assets of, any Reorganization Subsidiary) may be merged ; provided that the proceeds of such sale or consolidated disposition are applied toward the prepayment of the Tranche B Loan, to the extent required by Section 3.2(e); (x) with or into subject to Section 7.16, the Borrower or any member of the NEG Group may consummate a Disposition of any NEG Property; provided, that (A) such Disposition is a Qualified NEG Sale, a Qualified Abandonment, a Qualified Asset Sale or a Qualified Bankruptcy Sale and (B) the proceeds of such Disposition are applied toward the prepayment of the Tranche B Loan, to the extent required by Section 3.2(e) or 3.2(g), as applicable; and (xi) the Borrower may sell up to 15% of the common stock of PGE Utility in a public offering; provided that the Net Sale Proceeds of such sale are applied toward the prepayment of the Tranche B Loan, to the extent required by Section 3.2(e). For avoidance of doubt, nothing in this Section shall prohibit the Borrower from consummating a Spin-Off or any plan of reorganization permitted by Section 7.15 (so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection complies with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions requirements of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary3.8);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 1 contract
Samples: Credit Agreement (Pg&e Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The ------------------------------------------------------ Parent shall not convey, sell or otherwise dispose of (or agree to do any of the foregoing at any future time) the Borrower Common Stock, whether now owned or hereafter acquired. The Parent shall not purchase or otherwise acquire (in one or a series of related transactions) all or substantially all of the Capital Stock or the property or assets of any Person, except that the Parent may do so with the cash proceeds received from the sale or issuance of equity securities of the Parent or any of its Subsidiaries otherwise permitted by Section 10.13 net of any amounts required to make mandatory prepayments of Loans pursuant to Section 5.02(A)(e)(i) and with the cash proceeds from the incurrence of any Indebtedness by the Borrower or any of its Subsidiaries otherwise permitted hereunder; provided that (i)(A) such Person is, at the time of such purchase or -------- other acquisition, engaged in a line of business substantially similar to the Permitted Business or (B) the property or assets being purchased or otherwise acquired are used in a line of business substantially similar to the Permitted Business, (ii) the Parent shall use commercially reasonable efforts (including, if such purchase or other acquisition would otherwise be in violation of Section 10.08, seeking the consent of the Required Banks to the waiver of any such violation under such Section) to cause such purchase or other acquisition to be made by the Borrower or any of the Borrower's Subsidiaries and (iii) the Parent shall use commercially reasonable efforts to cause any Indebtedness incurred in connection with such purchase or other acquisition to be on a non-recourse basis with respect to the Parent. The Borrower will shall not, and will shall not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions by the Borrower of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may be made to the extent permitted Capital Expenditures by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease shall be permitted to the extent not in violation of Section 10.08; provided, -------- however, that no Default or Event of Default (as lessorboth before and after giving ------- effect to such transaction) real or personal property shall have occurred and be continuing and the Borrower is in the ordinary course of business other than pro forma compliance with Sections 10.09 and 10.10 after giving effect to a Receivables Subsidiary;
(d) each of such transaction; provided, further, however, that -------- ------- ------- Maintenance Capital Expenditures by -100- the Borrower and its Subsidiaries may make sales or transfers shall be permitted to the extent not in violation of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables SubsidiarySection 10.08;
(eii) so long as there shall not exist a Default or an Event of Default (both before and after giving effect to such sale), (A) the Borrower and its Subsidiaries may sell or discountfor fair value and for cash equipment in the ordinary course of business to any third party, so long as the proceeds therefrom do not exceed $500,000 in each case without recourse any fiscal year of the Borrower and (B) the Borrower and its Subsidiaries may sell for fair value and for cash attaching machinery to third party customers of the Borrower and its Subsidiaries, in the ordinary course of business, Accounts Receivable arising so long as the proceeds therefrom do not exceed $2,500,000 in any fiscal year of the Borrower and so long as such proceeds are used within 270 days after the receipt thereof to purchase or manufacture replacement machinery or to prepay Loans pursuant to Section 5.02(A)(f);
(iii) each of the Borrower and each of its Subsidiaries may lease (as lessee) real or personal property to the extent permitted by Section 10.04 (so long as such lease does not create Capitalized Lease Obligations);
(iv) investments and other transactions to the extent permitted by Section 10.06 shall be permitted;
(v) sales of inventory (other than attaching machinery) in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)shall be permitted;
(fvi) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how sell inventory and other intellectual property relating assets used in the ordinary course of business to the manufacture of chemical products and by-products (the “Technology”A) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower that are party to the Security Agreement and (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC)B) Subsidiaries of the Borrower that are not organized and that are not doing business in the United States; provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or sales described in subclause (zB) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to above are for cash -------- ------- at fair market value and do not exceed $5,000,000 per year for all such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned SubsidiarySubsidiaries;
(hvii) the Borrower and its Subsidiaries the Board of Directors of PCI may sellcause PCI to be dissolved or PCI may be merged with and into the Borrower, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunderthe Borrower being the surviving corporation;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (Bviii) the Borrower may cause Xxx to be dissolved or such merged with and into the Borrower with the Borrower being the surviving corporation;
(ix) Xxx, PCI and any Subsidiary has complied incorporated in Canada may transfer assets to the Borrower; and
(x) the Borrower may cause any Subsidiary incorporated in Canada to be dissolved or merged with or into the Borrower with the Borrower being the surviving corporation. To the extent the Required Banks waive the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property 10.02 with respect to the acquisition sale of any Collateral (to the extent the Required Banks are permitted to waive such other property;
(j) the Borrower provisions in accordance with Section 15.10), or any Subsidiary Collateral is sold as permitted by this Section 10.02, such Collateral shall be sold free and clear of the Borrower may sellLiens created by the Security Documents, lease, transfer or otherwise dispose of and the Administrative Agent and Collateral Agent shall be authorized to take any or all of its assets actions deemed appropriate in order to effect the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time), except that:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) sell, lease or otherwise dispose of any other assets, provided that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (ii) shall not exceed $5,000,000 in any four fiscal quarters of the Borrower;
(iii) investments may be made to the extent permitted by Section 8.49.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(civ) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04);
(dv) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than and consistent with past practices (including without limitation sales or transfers of inventory by the Borrower to a Receivables Subsidiaryits Subsidiaries);
(evi) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale);
(fvii) licenses or sublicenses by the Borrower and its Subsidiaries may license its patentsof software, trade secrets, know-how trademarks and other intellectual property relating to in the manufacture ordinary course of chemical products business and by-products (which do not materially interfere with the “Technology”) provided that such license business of Holdings and its Subsidiaries taken as a whole or the Borrower shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)permitted;
(gviii) the Asset Transfer shall be permitted; and
(ix) the Borrower or any Domestic Wholly-Owned Subsidiary of the Borrower (may transfer assets or lease to or acquire or lease assets from the Borrower or any other than a Receivables Subsidiary) Domestic Wholly-Owned Subsidiary or any Domestic Wholly-Owned Subsidiary may be merged or consolidated (x) with or into the Borrower so (as long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries corporation of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that such merger as a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (zof) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Domestic Wholly-Owned Subsidiary of the Borrower Borrower. To the extent the Required Banks waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (other than (I) from the Borrower unless sold to Holdings or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables SubsidiaryHoldings) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower shall be sold free and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% clear of the Net Sale Proceeds therefrom are used within 90 days Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant take any actions deemed appropriate in order to Section 4.3effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, provided that the proceeds of all assets subject to sales or other dispositions pursuant to this clause (ii) shall not exceed $5,000,000 in any fiscal year of the Borrower;
(iii) investments may be made to the extent permitted by Section 8.49.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(civ) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in to the ordinary course of business other than extent permitted by Section 9.04 (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04(v));
(dv) each of the Borrower and its Subsidiaries may make sales or transfers leases of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than inventory or equipment to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and their customers in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(gvi) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more other Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Domestic Subsidiary of the Borrower may sellor be liquidated, leasewound up or dissolved, transfer or otherwise dispose of any all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Borrower or any other Wholly-Owned Domestic Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)Borrower;
(kvii) any Subsidiary disposition of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolveassets required to effectuate Equipment Finance Transactions otherwise permitted hereby shall be permitted;
(lviii) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers each of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate acquire all or substantially all of the US Commodity Business Sale provided that not less than 75assets of any Person (or all or substantially all of the assets of a product line or division of any Person) or 100% of the Net Sale Proceeds therefrom are used within 90 days to capital stock of any Person, through merger with the Borrower or a Subsidiary of the Borrower or by stock purchase (any such acquisition permitted by this clause (viii), a "Permitted Section 9.02(viii) Acquisition"), so long as (i) repay Senior Secured Notes (2010); no Default of Event of Default then exists or would result therefrom, (ii) repay Senior Notes (2012); each of the representations and warranties contained in Section 7 shall be true and correct in all material respects both before and after giving effect to such Permitted Section 9.02(viii) Acquisition, (iii) repay Receivables Facility Attributed any Liens, Indebtedness and/or or Operating Lease Obligations assumed or issued in connection with such acquisition are otherwise permitted under Section 9.01 or 9.04, as the case may be, (iv) make the only consideration paid by the Borrower or any Subsidiary in connection with any Permitted Section 9.02(viii) Acquisition consists solely of cash, assumed Indebtedness (including Capitalized Lease Obligations) and/or Operating Lease Obligations, the issuance of unsecured Indebtedness to the extent permitted under Section 9.04(xv), common stock of Holdings and/or Qualified Preferred Stock of Holdings, (v) Holdings and its Subsidiaries would have been in compliance with the financial covenants set forth in Section 9.07 through 9.10, inclusive, for the Test Period then most recently ended prior to the date of the consummation of such Permitted Section 9.02(viii) Acquisition, in each case with such financial covenants to be determined on a voluntary prepayment of Term Loans pursuant pro forma basis (subject to Section 4.3.the methodology to give effect to such pro forma adjustments
Appears in 1 contract
Samples: Credit Agreement (Universal Compression Holdings Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower VHS Holdco I will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionother assets in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by VHS Holdco II and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) VHS Holdco I and each of its Subsidiaries may in the ordinary course of business, sell or otherwise dispose of materials, equipment and other assets which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business;
(iii) Investments may be made to the extent permitted by Section 8.79.05, Liens may exist to the extent permitted by Section 9.01 and Dividends may be made to the extent permitted by Section 9.03;
(civ) VHS Holdco I and each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation unless permitted by Section 9.04(iii));
(dv) VHS Holdco I and each of its Subsidiaries may purchase and sell inventory and supplies in the Borrower ordinary course of business;
(vi) VHS Holdco I and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign liquidate Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(evii) the Borrower each of VHS Holdco II and its Subsidiaries may sell or discountotherwise dispose of other assets provided (1) each such sale or other disposition by a Credit Party to a Subsidiary thereof that is not a Credit Party shall be made in compliance with Section 9.06 (without reliance on clause (ii) thereof), (2) VHS Holdco II or the respective Subsidiary receives at least fair market value (as determined in good faith by VHS Holdco II or such Subsidiary, as the case may be), (3) at least 75% of the total consideration received by VHS Holdco II or such Subsidiary is cash or Cash Equivalents and is received substantially contemporaneously with the consummation of such sale or other disposition, (4) the aggregate amount of the proceeds received from all medical office buildings (or assets comprising medical office buildings) sold pursuant to this clause (vii) from and after the Initial Borrowing Date shall not exceed $50,000,000, (5) the aggregate amount of the proceeds received from all assets (other than those described in preceding clause (4)) sold pursuant to this clause (vii) shall not exceed either $25,000,000 in any fiscal year of VHS Holdco I or $75,000,000 in the aggregate, (6) the Net Sale/Recovery Event Proceeds from all sales or dispositions pursuant to this clause (vii) are either applied as provided in Section 4.02(f) or reinvested in assets to the extent permitted by Section 4.02(f) and (7) in the case of any such sale or other disposition of less than all of the Equity Interests of any Subsidiary of VHS Holdco II, if after giving effect thereto such Subsidiary (x) becomes a Non-Guarantor Subsidiary, VHS Holdco I shall be in compliance with Section 9.17 after giving effect to such sale or other disposition or (y) becomes a Person in which VHS Holdco II or one of its Subsidiaries retains a minority equity interest, such retained equity interest shall be deemed to be an Investment and shall be required to be justified under Section 9.05(xxv);
(viii) each of VHS Holdco II and its Subsidiaries may sell or otherwise dispose of other assets provided (1) no Specified Default then exists or would exist immediately after giving effect thereto, (2) each such sale or other disposition by a Credit Party to a Subsidiary thereof that is not a Credit Party shall be made in compliance with Section 9.06 (without reliance on clause (ii) thereof), (3) VHS Holdco II or the respective Subsidiary receives at least fair market value (as determined in good faith by VHS Holdco II or such Subsidiary, as the case may be), (4) the consideration for such sale or disposition is received substantially contemporaneously with the consummation of such sale or other disposition, (5) the aggregate amount of the proceeds, together with the aggregate fair market value (as determined in good faith by VHS Holdco II) of all non-cash assets received from all assets sold pursuant to this clause (viii) shall not exceed $15,000,000 in any fiscal year of VHS Holdco I, and (6) in the case of any such sale or other disposition of less than all of the Equity Interests of any Subsidiary of VHS Holdco II, if after giving effect thereto such Subsidiary (x) becomes a Non-Guarantor Subsidiary, VHS Holdco II shall be in compliance with Section 9.17 after giving effect to such sale or other disposition or (y) becomes a Person in which VHS Holdco II or one of its Subsidiaries retains a minority equity interest, such retained equity interest shall be deemed to be an Investment and shall be required to be justified under Section 9.05(xxv);
(ix) any Subsidiary of VHS Holdco II may acquire one or more Hospital Properties located in the United States and any Health Care Assets located in the United States which are complementary to VHS Holdco II and its Subsidiaries' businesses, or VHS Holdco II or any Subsidiary of VHS Holdco II may acquire (including pursuant to a merger or consolidation) Equity Interests in any Person (which as a result of such acquisition becomes a Subsidiary of VHS Holdco II) all or substantially all of whose assets consist of one or more Hospital Properties located in the United States and/or any Health Care Assets located in the United States which are complementary to VHS Holdco II and its Subsidiaries' businesses (each such acquisition, a "Permitted Acquisition" and, collectively, the "Permitted Acquisitions"); provided that (w) no Event of Default then exists or would exist immediately after giving effect thereto, (x) to the extent the purchase price for such Permitted Acquisition is $10,000,000 or more, VHS Holdco I shall deliver to the Administrative Agent a Permitted Acquisition Compliance Certificate, no later than the date of the consummation of such Permitted Acquisition, (y) at the time of, and after giving effect to, each such Permitted Acquisition, VHS Holdco I and the Borrowers shall be in compliance with Sections 9.08, 9.09 and 9.10 on a Post-Test Period Pro Forma Basis and shall be in compliance with Section 9.17 and (z) the aggregate purchase price (including for this purpose any Acquisition CapEx and any earn-outs in connection with such Permitted Acquisition (taking the good faith estimate of an Authorized Officer of VHS Holdco I as the amount which would become due in connection with such earn-out)) for all such Permitted Acquisitions permitted under this clause (ix) (determined, in each case without recourse case, net of consideration in the form of, or paid with the proceeds of, substantially contemporaneous issuances of VHS Holdco I's common Equity Interests (to the extent such proceeds are not required to be applied pursuant to Section 4.02(d)) shall not exceed $25,000,000 except to the extent that VHS Holdco I certifies to the Administrative Agent in the respective Permitted Acquisition Certificate, in connection with any Permitted Acquisition which would cause the foregoing limitation to be exceeded, that such excess consideration does not exceed the Retained Excess Cash Flow Amount as then in effect and which shall constitute a utilization thereof, provided further, that clause (z) above shall not apply so long as at the time of the respective Permitted Acquisition (and after giving effect thereto), the Borrowers' and their respective Subsidiaries' unrestricted cash on hand at such time plus the aggregate principal amount of Revolving Loans that the Borrowers may incur in compliance with Section 1.01(b) at such time is at least $25,000,000;
(i) VHS Holdco II and its Subsidiaries may transfer assets to a Subsidiary Guarantor (other than the Captive Insurance Subsidiary) and any Subsidiary of VHS Holdco I may transfer assets to VHS Holdco II, (ii) Subsidiaries of VHS Holdco II that are not Subsidiary Guarantors may transfer assets to other Subsidiaries of VHS Holdco II that are not Subsidiary Guarantors, (iii) any Subsidiary that is a Non-Guarantor Subsidiary may merge or consolidate into or with any other Non-Guarantor Subsidiary, (iv) any Subsidiary (other than the Captive Insurance Subsidiary) of VHS Holdco II may merge with and into any Subsidiary Guarantor (other than the Captive Insurance Subsidiary) so long as the respective Subsidiary Guarantor is the surviving entity of such merger, and (v) any Subsidiary of VHS Holdco II (other than Co-Borrower) may liquidate or dissolve its existence or change its form of existence if VHS Holdco I determines in good faith that such liquidation, dissolution or change is in the best interests of VHS Holdco II and is not materially disadvantageous to the Lenders;
(xi) so long as no Default or Event of Default then exists or would exist immediately after giving effect thereto, the Borrowers and the Subsidiary Guarantors may transfer assets to Non-Guarantor Subsidiaries;
(xii) VHS Holdco II and its Subsidiaries may (i) lease real or personal property to physicians or other medical professionals in the ordinary course of business, Accounts Receivable arising and (ii) otherwise grant leases or subleases of real or personal property to other Persons not materially interfering with the conduct of the business of VHS Holdco I or any of its Subsidiaries;
(xiii) VHS Holdco II and its Subsidiaries may enter into short-term leases at any time with respect to (i) equipment not being utilized by any Hospital Property at such time, so long as such equipment was not purchased by VHS Holdco II or any of its Subsidiaries for the purpose of leasing such equipment, and (ii) durable medical equipment leased by VHS Holdco II and its Subsidiaries to its patients;
(xiv) VHS Holdco II and its Subsidiaries may enter into sale-leaseback transactions so long as (i) any such sale-leaseback transaction between a Credit Party and a Subsidiary thereof that is not a Credit Party shall be in compliance with Section 9.06 (without reliance on clause (ii) thereof), (ii) VHS Holdco II or the respective Subsidiary of VHS Holdco II receives at least fair market value (as determined in good faith by VHS Holdco II or such Subsidiary, as the case may be) and (iii) the Indebtedness incurred by VHS Holdco II or the respective Subsidiary is permitted under Section 9.04(iii);
(xv) VHS Holdco I and its Subsidiaries may pre-pay rent under leases and may purchase pre-paid insurance and services, in each case in the ordinary course of business;
(xvi) so long as the aggregate fair market value of all Real Property disposed of pursuant to this clause (xvi) does not, at the time of (and giving effect to) any such disposition, exceed 2% of the Total Assets of VHS Holdco I and its Subsidiaries, VHS Holdco II and its Subsidiaries shall be permitted to make dispositions of substantially unimproved Real Property to, or ground lease unimproved Real Property to, other Persons for sale or lease consideration pursuant to overall arrangements deemed by management of VHS Holdco II to be fair and reasonable, for the purpose of the respective transferee or lessee building on such Real Property (A) a medical office building, (B) a building to contain a healthcare business or (C) a parking garage to be used in connection with a medical office building or a building containing or to contain a healthcare business, and any such transaction may include, if a ground lease, a subordination of the fee ownership interest of the lessor to the lien of the lender for such Person (valued at the aggregate fair market value of the Real Property sold or leased);
(xvii) VHS Holdco II and/or its Subsidiaries may, in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof and consistent with customary industry practice (and not as part past practices prior to the Initial Borrowing Date, sell or otherwise transfer receivables owing to it to third parties for the purposes of any bulk sale or financing collection of receivables)outstanding balances thereunder;
(fxviii) the Borrower VHS Holdco II and its Subsidiaries may license its patents, trade secrets, knowtransfer parcels of Real Property which are not improved with any material building thereon to governmental authorities without consideration; and
(xix) non-how exclusive licensing and cross-licensing arrangements involving any technology or other intellectual property relating of VHS Holdco II or any of its Subsidiaries in the ordinary course of business. To the extent the Required Lenders or all of the Lenders, as the case may be, waive the provisions of this Section 9.02 with respect to the manufacture sale of chemical products and by-products any Collateral (other than the “Technology”) provided that such license shall be assignable sale of any Collateral to the Administrative Agent any Borrower or any assignee Guarantor), or any Collateral is sold or otherwise disposed of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses as permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower 9.02 (other than a Receivables Subsidiary) may be merged any sale or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into disposition to any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose Guarantor), such Collateral shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to (and at the request and the expense of VHS Holdco I shall) take any actions deemed appropriate by the Collateral Agent in order to effect or evidence the foregoing. In addition, subject to continued compliance with Section 9.17, upon the occurrence of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) sale of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of or less than all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as Equity Interests of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds Subsidiary Guarantor consummated in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied accordance with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property9.02(vii) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiaryviii);
(k) any Subsidiary , upon the receipt by the Administrative Agent and the Collateral Agent of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes a certificate of an Authorized Officer of VHS Holdco I certifying that (2010); x) such Subsidiary is to be released from the Subsidiaries Guaranty and the Security Documents to which it is a party in accordance with provisions hereof and thereof and (y) no Default or Event of Default exists at the time of, or would exist immediately after giving effect to, such release and (ii) repay evidence reasonably satisfactory to the Administrative Agent and the Collateral Agent that such Subsidiary has been (or will contemporaneously with the release described below, will be) released from its guarantee (if any) of any and all Indebtedness under the New Senior Subordinated Notes, the Existing Senior Subordinated Notes and, after the issuance thereof, the Permitted Subordinated Notes and the Permitted Senior Notes, such Subsidiary shall be released from the Subsidiaries Guaranty and the Security Documents to which it is party, and the Administrative Agent and the Collateral Agent shall be authorized to (2012); (iiiand at the request and expense of VHS Holdco I shall) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant take any action deemed appropriate in order to Section 4.3effect or evidence the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Restricted Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Capital Expenditures by the U.S. Borrower and its Restricted Payments may Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.410.07;
(bii) Investments may be made to the extent permitted by Section 8.710.05;
(ciii) the U.S. Borrower and its Restricted Subsidiaries may sell assets, so long as (u) no Default or Event of Default then exists or would result therefrom, (w) each such sale is on terms and conditions not less favorable to the U.S. Borrower or such Restricted Subsidiary as would reasonably be obtained by the U.S. Borrower or such Restricted Subsidiary at that time in a comparable arm’s-length transaction with a Person other than an Affiliate and the U.S. Borrower or the respective Restricted Subsidiary receives at least fair market value (as determined in good faith by the U.S. Borrower or such Restricted Subsidiary, as the case may be), (x) at least 75% of the consideration received by the U.S. Borrower or such Restricted Subsidiary shall be in the form of cash or Cash Equivalents (taking into account the amount of cash and Cash Equivalents, the principal amount of any promissory notes and the fair market value, as determined by the U.S. Borrower or such Restricted Subsidiary, as the case may be, in good faith, of any other consideration) and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 5.02(h) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $5,000,000 in any fiscal year of Holdings;
(iv) each of the U.S. Borrower and its Restricted Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04(iii));
(dv) each of the U.S. Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Restricted Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fvi) each of the U.S. Borrower and its Restricted Subsidiaries may license grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of Holdings or any of its patentsRestricted Subsidiaries, trade secretsin each case so long as no such grant otherwise adversely affects the Collateral Agent’s security interest in the asset or property subject thereto in any material respect;
(vii) (w) any Domestic Subsidiary of the U.S. Borrower may be merged, know-how consolidated or liquidated with or into the U.S. Borrower (so long as the surviving Person of such merger, consolidation or liquidation is a corporation, limited liability company or limited partnership organized or existing under the laws of the United States of America, any State thereof or the District of Columbia and, if such surviving Person is not the U.S. Borrower, such Person expressly assumes, in writing, all the obligations of the U.S. Borrower under the Credit Documents pursuant to an assumption agreement in form and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable substance reasonably satisfactory to the Administrative Agent Agent) or any assignee of U.S. Subsidiary Guarantor (so long as the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership surviving Person of such Technology to any other Person merger, consolidation or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any liquidation is a Wholly-Owned Domestic Subsidiary of the U.S. Borrower, is a corporation, limited liability company or limited partnership and is or becomes a U.S. Subsidiary Guarantor concurrently with such merger, consolidation or liquidation), (x) any Canadian Subsidiary of the U.S. Borrower (other than a Receivables Subsidiarythe Canadian Borrower) may be merged merged, consolidated, amalgamated or consolidated (x) liquidated with or into the Canadian Borrower (so long as the Canadian Borrower is the surviving entitycorporation of such merger, consolidation, amalgamation or liquidation) or any Canadian Subsidiary Guarantor (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be so long as the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower merger, consolidation, amalgamation or liquidation is a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the U.S. Borrower organized or existing under the laws of Canada or any province thereof, is not an unlimited liability company and is or becomes a Canadian Subsidiary Guarantor concurrently with such merger, consolidation or liquidation), (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(ky) any Foreign Subsidiary of the U.S. Borrower (other than a Receivables SubsidiaryCanadian Credit Party) may voluntarily liquidatebe merged, windconsolidated, amalgamated or liquidated with or into any Wholly-up Owned Foreign Subsidiary of the U.S. Borrower, so long as such Wholly-Owned Foreign Subsidiary is the surviving corporation of such merger, consolidation, amalgamation or dissolveliquidation and (z) any Foreign Subsidiary (other than a Canadian Credit Party) of the U.S. Borrower may be merged, consolidated or liquidated with or into any U.S. Credit Party (so long as such U.S. Credit Party is the surviving corporation of such merger, consolidation or liquidation); provided that any such merger, consolidation, amalgamation or liquidation shall only be permitted pursuant to this clause (vii), so long as (I) no Default and no Event of Default then exists or would exist immediately after giving effect thereto and (II) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors in the assets (and Equity Interests) of any such Person subject to any such transaction shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation, amalgamation or liquidation);
(lviii) Permitted Acquisitions may be made to the extent permitted by Section 9.15, and either Borrower or a Subsidiary Guarantor may permit another Person to merge into or consolidate with it in order to effect a Permitted Acquisition;
(ix) each of the U.S. Borrower and its Restricted Subsidiaries may, directly or indirectly, sell, contribute may make sales of inventory in the ordinary course of business;
(x) each of the U.S. Borrower and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary its Restricted Subsidiaries may sell and make or otherwise dispose of outdated, obsolete surplus or worn out property (other transfers of Receivables Facility Assets to the Issuerthan Real Property), so long as, in each case pursuant to case, disposed of in the Receivables Documents under a Permitted Accounts Receivables Securitizationordinary course of business;
(mxi) Foreign sales, transfers or dispositions by the U.S. Borrower or any of its Restricted Subsidiaries of non-strategic or non-core assets purchased as part of a Permitted Acquisition, so long as (u) at the time of such sale, transfer or disposition no Event of Default then exists or would result therefrom (other than any such sale, transfer or disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default exists), (v) each such sale, transfer or disposition is on terms and conditions no less favorable to the U.S. Borrower or such Restricted Subsidiary as would reasonably be obtained by the U.S. Borrower or such Restricted Subsidiary at that time in a comparable arm’s length transaction with a Person other than an Affiliate and, in the case of any such sale, transfer or disposition of non-strategic or non-core assets having a fair market value in excess of $5,000,000, the U.S. Borrower or the respective Restricted Subsidiary receives at least fair market value (as determined in good faith by the U.S. Borrower or such Restricted Subsidiary, as the case may be), (w) at least 75% of the consideration received by the U.S. Borrower and its Restricted Subsidiaries shall be in the form of cash or Cash Equivalents (taking into account the amount of cash and Cash Equivalents, the principal amount of any promissory note and the fair market value, as determined by the U.S. Borrower or such Restricted Subsidiary, as the case may be, in good faith, of any other consideration that is paid at the time of closing of such sale, transfer or disposition, (x) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 5.02(h), (y) the aggregate proceeds (determined in a manner consistent with clause (w) above) received by the U.S. Borrower or such Restricted Subsidiary) from all such sales, transfers or dispositions relating to a given Permitted Acquisition shall not exceed 30% of the aggregate consideration paid for such Permitted Acquisition, and (z) such non-strategic or non-core assets are sold, transferred or disposed of on or prior to the first anniversary of the respective Permitted Acquisition;
(xii) in order to effect a sale, transfer or disposition otherwise permitted by this Section 10.02, a Restricted Subsidiary (other than the Canadian Borrower) of the U.S. Borrower may be merged or consolidated with or into another Person, or may be dissolved or liquidated;
(xiii) each of the U.S. Borrower and its Restricted Subsidiaries may enter into Foreign Factoring Transactionseffect Sale Leaseback Transactions involving real property acquired after the Initial Borrowing Date and not more than 180 days prior to such Sale Leaseback Transaction for cash in an amount at least equal to the cost of such property; andprovided that any Net Sale Proceeds received by the U.S. Borrower or any of its Restricted Subsidiaries from any such Sale Leaseback Transaction from and after such time as when the U.S. Borrower and its Restricted Subsidiaries shall have received Net Sale Proceeds of at least $25,000,000 from all Sale Leaseback Transactions occurring after the Initial Borrowing Date shall be applied to repay Term Loans as provided in Section 5.02(h) or reinvested or retained to the extent permitted by Section 5.02(h);
(nxiv) the U.S. Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided Merger;
(xv) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(xvi) transfers of property subject to casualty or condemnation proceedings upon the occurrence of the related Recovery Event;
(xvii) the abandonment of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of the U.S. Borrower or a Restricted Subsidiary are not material to the conduct of the business of the U.S. Borrower and its Restricted Subsidiaries taken as a whole;
(xviii) voluntary terminations of Interest Rate Protection Agreements and Other Hedging Agreements;
(xix) dispositions resulting from foreclosures by third parties on properties of the U.S. Borrower or any of its Restricted Subsidiaries and acquisitions by the U.S. Borrower or any of its Restricted Subsidiaries resulting from foreclosures by such Persons or properties of third parties;
(xx) terminations of leases and subleases, including the lease for the Canadian leased property located at 000 Xxxxxx Xxxxx, Brampton, Ontario, in connection with the exercise of the expansion option in the lease for the Canadian leased property located at 00 Xxxxxx Xxxx, Brampton, Ontario; and
(xxi) the use of cash and Cash Equivalents to make payments that not less than 75are otherwise permitted under Sections 10.03 and 10.10. Notwithstanding anything to the contrary contained above in this Section 10.02, in no event shall the U.S. Borrower or any of its Restricted Subsidiaries (x) sell any Equity Interests in any Restricted Subsidiary of the U.S. Borrower unless 100% of the Net Sale Proceeds therefrom Equity Interests of such Restricted Subsidiary (and any of its Restricted Subsidiaries) owned by the U.S. Borrower and its other Subsidiaries are used within 90 days sold or otherwise transferred pursuant thereto (in a transaction otherwise meeting the foregoing requirements of this Section 10.02) and, after giving effect thereto, the U.S. Borrower and its Restricted Subsidiaries shall owe no Indebtedness to such Person or any of such Person’s Restricted Subsidiaries (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans unless the amount thereof would be permitted pursuant to Section 4.310.04 after giving effect to the change in status of such Person from a Subsidiary to a non-Subsidiary) and any remaining Investments by the U.S. Borrower and its Restricted Subsidiaries and such Person and its Restricted Subsidiaries after the sale of all Equity Interests therein shall be required to be justified on such date pursuant to clause (xiii) of Section 10.05 after giving effect to the change in status of such Person from a Subsidiary to a non-Subsidiary (to the extent the same were not previously justified pursuant to said clause) or (y) enter into any sale-lease back transactions other than as permitted pursuant to Section 10.02(xiii). To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (other than to Holdings or a Restricted Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall, and shall be authorized to, take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (BWAY Holding CO)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower JCC Holding will not, and will not permit any of its Subsidiaries (other than Unrestricted Subsidiaries) to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or substantially all of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business) of any Person, except that:
(a) Restricted Payments may Capital Expenditures by the Company shall be made to permitted in accordance with the extent permitted by provisions of Section 8.45.18;
(b) Investments may be made to the extent permitted by Section 8.75.19;
(c) each of the Borrower and its Subsidiaries Company may lease (as lessor) real or personal property portions of the Casino for retail, restaurant and other ancillary uses so long as all such leases (i) do not in the ordinary course aggregate detract from the gaming operations of business other than the Casino in any material respect, (ii) are permitted by the Casino Operating Contract, the Casino Lease, the Gaming Regulations and applicable zoning and conditional uses and (iii) are subordinate and subject to a Receivables Subsidiarythe Company Mortgage;
(d) each of the Borrower and its Subsidiaries Company may make sales lease (as lessee) real or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business personal property so long as any such lease does not create a Capitalized Lease Obligation (other than to a Receivables Subsidiaryas permitted under Section 5.12);
(e) HET, or any of its Subsidiaries, so long as HET or its respective Subsidiary owns 90% of more of the Borrower common stock of JCC Holding, may merge with or into JCC Holding so long as (i) no Default or Event of Default exists at the time of such merger or immediately thereafter giving effect thereto and its Subsidiaries may sell or discount(ii) the surviving corporation enters into such agreements, in each case without recourse form and in substance reasonably satisfactory to the ordinary course Trustee, affirming that it assumes all obligations of businessJCC Holding under the Guaranty and the relevant Security Documents, Accounts Receivable arising in and takes all action necessary or desirable to maintain the ordinary course perfection and priority of business (x) which are overdue, or (y) which the Borrower or all security interests created under such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);Security Documents; and
(f) the Borrower and its Subsidiaries Company may license its patentsmake dispositions pursuant to Section 4.3 (a)(i), trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require and (iii) hereof. To the Borrower to pay extent any fees for any such use (such licenses Collateral is sold as permitted by this Section 8.3(f)5.14, hereafter “Permitted Technology Licenses”);
such Collateral (g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect unless sold to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower JCC Holding or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other propertyJCC Holding) shall be disregarded for purposes sold free and clear of calculations pursuant the Liens created by the Security Documents, and the Collateral Agent shall be authorized to this Section 8.3(i) take any actions (and shall otherwise be deemed take such actions) as it deems appropriate in order to be permitted under this Section 8.3) from and after effect the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary release of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) respective Collateral from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of Liens created by the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3respective Security Documents.
Appears in 1 contract
Samples: Indenture (JCC Holding Co)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(a) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by Section 8.4not in violation of Sections 9.8 and 9.13;
(b) each of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, provided that the proceeds of all assets subject to sales or other dispositions pursuant to this clause (b) shall not exceed $250,000 in any fiscal year of the Borrower;
(c) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary9.6;
(d) each of the Borrower and its Subsidiaries may make sales lease (as lessee) real or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in personal property to the ordinary course of business other than to extent permitted by Section 9.4 (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation);
(e) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and make sales of inventory in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture each of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer lease or otherwise dispose of any asset in connection with any Sale equipment and Leaseback Transaction involving Indebtednessother assets, Capitalized Lease Obligations or an Operating Financing Lease to the extent not otherwise permitted hereunderunder any other clause of this Section 9.2, at the fair market value thereof (as determined in good faith by the Borrower), provided that the proceeds thereof (i) shall consist of at least 90% in cash and (ii) do not exceed $500,000 in the aggregate in any fiscal year of the Borrower;
(ig) the Borrower and one or more of the Subsidiary Guarantors may merge or consolidate into one another provided that the Borrower is the surviving entity of any such consolidation or merger, or one or more of the Subsidiaries may merge or consolidate into one another provided that if a Subsidiary Guarantor is involved in any Fiscal Yearsuch merger or consolidation, the Borrower or any Subsidiary may dispose Guarantor is the surviving entity of any such consolidation or merger, and after giving effect thereto, no Default or Event of its assets (including in connection with Sale Default is caused thereby and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in execute and deliver such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower agreements and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used instruments deemed reasonably necessary by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and Lender; and
(Bh) the Borrower or such Subsidiary has complied with Acquisition shall be permitted. To the extent the Lender waives the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property 9.2 with respect to the acquisition sale of such other property;
(j) the Borrower any Collateral, or any Subsidiary Collateral is sold as permitted by this Section 9.2, such Collateral shall be sold free and clear of the Borrower may sellLiens created by the Security Documents, lease, transfer or otherwise dispose of and the Lender shall be authorized to take any or all of its assets actions deemed appropriate to effect the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Credit Agreement (Semiconductor Packaging Materials Co Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than sales of inventory in the ordinary course of business), with respect to or enter into any such transaction involving all sale-leaseback transactions, or substantially all purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the Borrower, enter into an agreement ordinary course of business) of any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.410.07;
(bii) the Borrower and its Subsidiaries may sell, convey or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.710.05 or 10.06(ix);
(civ) the Borrower and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary of the Borrower, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (iv)), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (x) the consideration received by the Borrower or such Subsidiary consists of at least 90% cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds (as defined in the First Lien Credit Agreement) and the Asset Sale Proceeds (such term used in this clause (iv) as defined in the Pulitzer Debt Agreement or the documentation governing any Permitted Pulitzer Debt Refinancing Indebtedness, as applicable) therefrom are applied as (and to the extent) required by Section 5.02(d) of the First Lien Credit Agreement or Section 5D of the Pulitzer Debt Agreement or the documentation governing any Permitted Pulitzer Debt Refinancing Indebtedness, as applicable, and without giving effect to any waivers thereof, and (z) the assets sold pursuant to this clause (iv) shall not, in the aggregate, be comprised of assets that generated in any fiscal year of the Borrower more than 5.25% of Consolidated EBITDA of the Borrower and its Subsidiaries for the immediately preceding fiscal year of the Borrower; provided, that notwithstanding anything in this clause (iv) to the contrary, no Pulitzer Entity may engage in any Asset Sale (i) if the aggregate amount of Asset Sale Proceeds in respect of any one transaction or series of related transactions would be equal to or less than $1,075,000 unless at least 75% of such Asset Sale Proceeds consist of cash or (ii) if the aggregate amount of Asset Sale Proceeds in respect of any one transaction or series of related transactions would be more than $1,075,000 unless either (x) such Asset Sale Proceeds are applied to the payment of obligations under the Pulitzer Debt Documents or (y) such Asset Sale Proceeds consist only of cash and the Required Lenders have given their prior written consent thereto; provided, however, that notwithstanding the foregoing, no Asset Sale shall involve the sale of any Equity Interests in Star Publishing or the Equity Interests of TNI Partners held by Star Publishing; provided, further, that the contribution of equity interests in or assets of Sandler Capital Partners V, L.P. to one or more qualified or non-qualified pension, retirement or similar employee compensation plans of the Pulitzer Entities shall be permitted hereunder;
(v) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04(iv));
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fvii) each of the Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and its Subsidiaries, in each case so long as no such license shall (i) transfer ownership of such Technology to any other Person grant otherwise affects the Collateral Agent’s security interest in the asset or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)property subject thereto;
(gviii) any Subsidiary of the Borrower that is (other than a) a Receivables SubsidiaryXxx Entity may convey, lease, license, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower that is a Xxx Entity and (b) a Pulitzer Entity may convey, lease, license, sell or otherwise transfer all or any part of its business, properties and assets to Pulitzer or any Wholly-Owned Domestic Subsidiary of Pulitzer, so long as, in each case, any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken;
(ix) any Subsidiary of the Borrower that is (a) a Xxx Entity may merge or consolidate with and into, or be merged dissolved or consolidated liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower that is a Xxx Entity and (b) a Pulitzer Entity may merge or consolidate with and into, or be dissolved or liquidated into, Pulitzer or any Wholly-Owned Domestic Subsidiary of Pulitzer, so long as (x) with in the case of any such merger, consolidation, dissolution or into liquidation involving the Borrower so long as Borrower, the Borrower is the surviving entityor continuing entity of any such merger, consolidation, dissolution or liquidation, (y) with or into any one or more in all other cases, the respective Wholly-Owned Subsidiaries Domestic Subsidiary is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (z) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(x) any Foreign Subsidiary of the Borrower that is (other than an Unrestricted Subsidiarya) a Xxx Entity may be merged, Airstar Corporationconsolidated or amalgamated with and into, Huntsman Headquarters Corporation or IRIC); providedbe dissolved or liquidated into, howeveror transfer any of its assets to, that a any Wholly-Owned Foreign Subsidiary of the Borrower that is a Xxx Entity and (b) a Pulitzer Entity may be merged, consolidated or Subsidiaries shall amalgamated with and into, or be the surviving entity dissolved or (z) with liquidated into, or into transfer any Person in connection with the consummation of an Acquisition; providedits assets to, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a any Wholly-Owned Subsidiary;Foreign Subsidiary of Pulitzer, so long as, in each case, (x) such respective Wholly-Owned Foreign Subsidiary is the surviving or continuing entity of any such merger, consolidation, amalgamation, dissolution or liquidation and (y) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests of such respective Wholly-Owned Foreign Subsidiary and such respective Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken; and
(hxi) the Borrower and its Subsidiaries may sell, transfer convey or otherwise dispose of cash and Cash Equivalents in the ordinary course of business, in each case for cash at Fair Market Value. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any asset in connection with any Sale and Leaseback Transaction involving IndebtednessCollateral, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets Collateral is sold as permitted by this Section 10.02 (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant other than to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to acquire other property used or to be used take any actions deemed appropriate in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all reasonable opinion of the net proceeds of any such disposition are used Administrative Agent or the Collateral Agent in order to acquire such other property, then dispositions in an amount equal to effect the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions by the Borrower or any of its properties Subsidiaries of inventory, materials and equipment in the ordinary course of business) of any Person (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.08;
(b) Investments may be made to the extent permitted by Section 8.7;
(cii) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to a Receivables Subsidiary(so long as such lease does not create Capitalized Lease Obligations);
(diii) investments may be made to the extent permitted by Section 9.06;
(iv) the Transaction shall be permitted as contemplated by the Documents;
(v) the Borrower may effect Permitted Acquisitions in accordance with the requirements of Section 8.15;
(vi) each of the Borrower Borrowers and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(evii) the Borrower may sell assets so long as the aggregate amount of Net Sales Proceeds received from such sales does not exceed $1,000,000 in the aggregate in any fiscal year;
(viii) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and motor vehicles so long as the aggregate amount of Net Sales Proceeds received from such sales does not exceed $150,000;
(ix) any Subsidiary Guarantor domiciled in the ordinary course of businessUnited States, Accounts Receivable arising in the ordinary course of business (x) which are overdueCanada or any state, province or territory thereof may be merged or amalgamated with and into, or (y) which be dissolved or liquidated into, or transfer any of its assets to, the Borrower or any other Subsidiary Guarantor so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary may reasonably determine are difficult Guarantor shall remain in full force and effect and perfected (to collect but only at least the same extent as in connection with the compromise effect immediately prior to such merger, dissolution, liquidation or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablestransfer);
(fx) the Borrower and its Subsidiaries may license its transfer patents, trade secretstrademarks, copyrights and know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f)Intellectual Property Subsidiary, hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is security interests granted to the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries Collateral Agent for the benefit of the Borrower Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRICto at least the same extent as in effect immediately prior to such transfer); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;and
(hxi) the Borrower and its Subsidiaries may selllicense, transfer or otherwise dispose of any asset in connection with any Sale as licensee, from the Intellectual Property Subsidiary and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Intellectual Property Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtednesslicense, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by as licensor, to the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower patents, trademarks, copyrights and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used know-how in the business referred to in Section 8.9 and (B) ordinary course of business. To the Borrower or such Subsidiary has complied with extent the Required Banks waive the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property 9.02 with respect to the acquisition sale of any Collateral (to the extent the Required Banks are permitted to waive such other property;
(j) the Borrower provisions in accordance with Section 13.12), or any Subsidiary Collateral is sold as permitted by this Section 9.02, such Collateral shall be sold free and clear of the Borrower may sellLiens created by the Security Documents, lease, transfer or otherwise dispose of and the Agent and Collateral Agent shall be authorized to take any or all of its assets actions deemed appropriate in order to effect the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Credit Agreement (Video Update Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The US Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the US Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(b) Investments may be made to the extent permitted by Section 8.7;
(cii) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary;
(d) each of the US Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(eiii) each of the US Borrower and its Subsidiaries may sell obsolete or worn-out equipment or materials in the ordinary course of business;
(iv) each of the US Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fv) each of the US Borrower and its Subsidiaries may license its patentssell other assets in the ordinary course of business in an aggregate amount not to exceed $500,000 per sale or series of related sales, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that no more than $1,000,000 of such license shall sales may be assignable made pursuant to the Administrative Agent or this clause (v) in any assignee fiscal year of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)US Borrower;
(gvi) any Subsidiary each of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the US Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its sell other assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if other than the aggregate net book value (at capital stock of a Subsidiary unless all of the time capital stock of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year Subsidiary is so sold pursuant to this clause (vi)) so long as (i) plus no Default or no Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the US Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the US Borrower or such Subsidiary, as the case may be), (iii) the total consideration received by the US Borrower or such Subsidiary is at least 90% cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 3.03(b) and (v) the aggregate net book value amount of the proceeds received from all the assets then proposed sold pursuant to be disposed of does this clause (vi) shall not exceed 12.5% $5,000,000 in any fiscal year of the Consolidated Net Tangible Assets US Borrower;
(vii) Investments may be made to the extent permitted by Section 9.05;
(viii) each of the US Borrower and its Subsidiaries may lease (as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements lessee) real or personal property (so long as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or lease does not create a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, Capitalized Lease Obligation except to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this permitted by Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary9.04(iv));
(kix) any Subsidiary of the Borrower (other than a Receivables Subsidiary) Permitted Acquisitions may voluntarily liquidate, wind-up or dissolvebe made in accordance with Section 8.14;
(lx) each of the US Borrower and its Subsidiaries may, directly may grant leases or indirectly, sell, contribute and make subleases to other transfers Persons not materially interfering with the conduct of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers the business of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables SecuritizationUS Borrower or any of its Subsidiaries;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nxi) the US Borrower and its Subsidiaries may consummate sale and leaseback transactions with respect to properties acquired after the Effective Date, in each case so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale and leaseback transaction is in an arm's-length transaction and the US Commodity Business Sale provided that not less than 75% Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) the total consideration received by the US Borrower or such Subsidiary in connection with each such sale and leaseback transaction is cash and is paid at the time of the closing thereof, and (iv) the Net Sale Proceeds therefrom are used within 90 days applied and/or reinvested as (and to the extent) required by Section 3.03(b);
(xii) any Subsidiary of the US Borrower may be merged, consolidated or liquidated with or into the US Borrower so long as the US Borrower is the surviving corporation of such merger, consolidation or liquidation;
(xiii) any Domestic Subsidiary of the US Borrower may be merged, consolidated or liquidated with or into any other Domestic Subsidiary of the US Borrower so long as (i) repay Senior Secured Notes (2010); in the case of any such merger, consolidation or liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger, consolidation or liquidation, and (ii) repay Senior Notes in the case of any such merger, consolidation or liquidation involving a Wholly-Owned Domestic Subsidiary of the US Borrower, in addition to the requirements of preceding clause (2012i), a Wholly-Owned Domestic Subsidiary is the surviving corporation of such merger, consolidation or liquidation;
(xiv) any Foreign Subsidiary of the US Borrower may be merged, consolidated or liquidated with or into any other Foreign Subsidiary of the US Borrower so long as (i) in the case of any such merger, consolidation or liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger, consolidation or liquidation, and (ii) in the case of any such merger, consolidation or liquidation involving a Wholly-Owned Foreign Subsidiary of the US Borrower, in addition to the requirements of the preceding clause (i), a Wholly-Owned Foreign Subsidiary is the surviving corporation of such merger, consolidation or liquidation; and
(xv) the US Borrower and its Subsidiaries may sell up to a 49% equity interest in the US Borrower's Subsidiary formed to conduct business in Latin America (other than in Mexico and Columbia) to a joint venture partner that is not an Affiliate of the US Borrower so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) such sale is in an arm's-length transaction and the US Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the US Borrower or such Subsidiary, as the case may be), (iii) repay Receivables Facility Attributed Indebtedness and/or the total consideration received by the US Borrower or such Subsidiary in connection therewith is cash and is paid at the time of the closing of such sale, and (iv) make the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 3.03(b). To the extent the Required Lenders or all of the Lenders, as the case may be, waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to the US Borrower or a voluntary prepayment Subsidiary thereof), such Collateral shall be sold free and clear of Term Loans pursuant the Liens created by the respective Security Documents and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Sitel Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Each of OFSI, Caterair Holdings and the Borrower will not, and each of Caterair Holdings and the Borrower will not permit any of its respective Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) Investments may be made to the extent permitted by Section 8.79.05;
(ciii) each sales of the Borrower and its Subsidiaries may lease (as lessor) real or personal property inventory in the ordinary course of business other than to a Receivables Subsidiarymay be made;
(div) each of OFSI, Caterair Holdings, the Borrower and its Subsidiaries each Subsidiary of Caterair Holdings and the Borrower may make lease (as lessee) real or personal property so long as any such lease does not create a Capitalized Lease Obligation (other than as permitted under Section 9.04), provided that, in any event, Sky Chefs, CII and Caterair may enter into the Lease Agreements;
(v) sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents other dispositions in the ordinary course of business other than to a Receivables Subsidiaryof equipment or materials which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business shall be permitted;
(evi) in addition to sales and dispositions permitted pursuant to clause (v) of this Section 9.02, sales and other dispositions in the ordinary course of business of equipment and materials shall be permitted so long as the Net Sale Proceeds from all such sales shall not exceed $5,000,000 in any fiscal year of the Borrower;
(vii) sales and other dispositions of other assets shall be permitted so long as (x) all such sales and other dispositions are at fair market value (as determined in good faith by senior management of the Person selling or disposing of such assets) and the proceeds thereof shall consist of at least 75% in cash and are received at the closing of such sale or other disposition and (y) the proceeds from all such sales and other dispositions do not exceed $15,000,000 in any fiscal year of the Borrower or $50,000,000 in the aggregate, it being understood that in no event shall the capital stock of any Guarantor be sold or otherwise disposed of pursuant to this clause (vii) (other than any sale or disposition in full of the capital stock of a Guarantor that is an Immaterial Subsidiary);
(viii) Sky Chefs, CII and Caterair may enter into the License Agreements;
(ix) Sky Chefs and CII may exercise the Purchase Option in full or in part so long as (i) in the case of any partial exercise, the Borrower shall have demonstrated to the satisfaction of the Agents that the sum of (1) the present value of the lease payments under the remaining Lease Agreements (assuming an interest rate of 9% per annum) plus (2) the present value of the license payments under the remaining License Agreements (assuming an interest rate of 9% per annum) plus (3) the fair value (determined in accordance with the terms of the Lease Agreements and the License Agreements) of the remaining Leased Assets and Licensed Assets as at the end of the respective terms of the Lease Agreements and License Agreements plus (4) the present value of the remaining non-compete payments to be paid pursuant to the Non-Compete Agreement (assuming an interest rate of 9%) are sufficient to repay in full the then remaining outstanding loans under the Caterair Credit Agreement (after giving effect to any repayment thereof with the proceeds of such exercise), but excluding any such loans to the extent that same are assumed by the Borrower in accordance with the terms of the Caterair Credit Agreement, and (ii) in the case of a full exercise (whether through successive partial exercises or otherwise), all then outstanding loans under the Caterair Credit Agreement and all accrued and unpaid interest with respect to the foregoing obligations are repaid in full except to the extent that such outstanding loans (and accrued and unpaid interest thereon) have been assumed by the Borrower in accordance with the terms of the Caterair Credit Agreement;
(x) sales and other dispositions of Flight Kitchens by the Borrower, Caterair or any of their respective Subsidiaries shall be permitted to the extent that the Board of Directors of the Borrower has determined that either (A) such Flight Kitchens are redundant by reason of the operations of the Borrower, Caterair and their respective Wholly-Owned Subsidiaries, it being understood that such redundant Flight Kitchens shall be limited to Flight Kitchens existing on the Restatement Effective Date and with respect to which the Borrower, Caterair and their respective Subsidiaries have more than one Flight Kitchen serving the same airport and that such Persons shall still be able to sufficiently cover the business at such airport from the non-redundant Flight Kitchen or Kitchens or (B) such Flight Kitchens have been non-operating for at least three months so long as, in the case of a sale or other disposition of a redundant Flight Kitchen, (x) all such sales and other dispositions are at fair market value (as determined in good faith by the Board of Directors of the Borrower) and the proceeds thereof shall consist of at least 75% in cash and are received at the time of the closing of such sale or other disposition and (y) the aggregate amount of proceeds from all such sales and other dispositions does not exceed $20,000,000;
(xi) OFSI may sell or otherwise dispose of the Class B Assets or the equity interests of any Non-SCIS Subsidiary or any Dividends or earnings from, or any proceeds in respect of, any thereof;
(xii) any Subsidiary of the Borrower or Caterair may be liquidated so long as the assets of such Subsidiary are distributed to the Borrower, Caterair or any of their respective Wholly-Owned Domestic Subsidiaries, as the case may be (provided, that in the case of a liquidation of a non-Wholly-Owned Subsidiary, the assets of such Subsidiary may be distributed to its shareholders generally so long as the Borrower, Caterair or its respective Subsidiary which owns the equity interest or interests in the Subsidiary being liquidated receives at least its proportionate share of the assets being distributed (based upon its relative holdings of the equity interests in the Subsidiary being liquidated and taking into account the relative preferences, if any, of the various classes of equity interest in such Subsidiary)), provided that in the case of a liquidation of a Foreign Subsidiary, the assets of such Foreign Subsidiary may also be distributed to a Wholly-Owned Foreign Subsidiary of the Borrower or Caterair;
(xiii) the Borrower and its Subsidiaries may sell acquire all or discount, in each case without recourse and in substantially all of the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdueof, or an operating division or a business unit of, any Person so long as the aggregate amount expended pursuant to this clause (yxiii) which in any fiscal year of the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection Borrower, together with the compromise aggregate amount of Designated Investments and Designated Guaranties made during such fiscal year, does not exceed the Permitted Amount for such fiscal year;
(xiv) the Borrower, Caterair and their respective Wholly-Owned Subsidiaries may acquire all or collection thereof consistent substantially all of the business of, or an operating division or a business unit of, any Person with customary industry practice (the Net Sale Proceeds received from any Asset Sale to the extent that such Net Sale Proceeds are not required to be applied as provided in Section 3.03(b) and to the extent such Net Sale Proceeds are not as part of any bulk sale otherwise used to make Investments pursuant to Section 9.05(xvii) or financing of receivablesCapital Expenditures pursuant to Section 9.07(d);
(fxv) the Borrower and at any time on or after September 1, 2000, Caterair Australia Pty Limited may sell its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating equity interest in Caterair Airport Services Pty Limited to Qantas Flight Caterair Holdings Limited pursuant to the manufacture exercise by Qantas Flight Caterair Holdings Limited of chemical products the call options respectively described in Clauses 19A, 19B and by-products (19C of the “Technology”) provided that Restated Shareholders Deed made on December 18, 1996, among Caterair Airport Services Pty Limited, Caterair Australia Pty Limited, Caterair, CII, OFSI, Qantas Airways Limited and Qantas Flight Catering Holdings Limited, so long as the proceeds of each such license sale -71- 79 shall consist solely of cash and the purchase price shall be assignable to determined on the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no basis set forth in such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Restated Shareholders Deed;
(gxvi) any Domestic Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged merge or consolidated (x) consolidate with or and into any Wholly-Owned Domestic Subsidiary of the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose case of any merger or consolidation involving a Subsidiary Guarantor, such Subsidiary Guarantor is the surviving corporation of its assets such merger or consolidation, (including ii) in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if addition to the aggregate net book value (at the time requirements of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this preceding clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided), however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower is the surviving corporation of such merger or consolidation and (other than (Iiii) from the Borrower or a security interests, if any, granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Domestic Subsidiary shall remain in full force and effect and perfected (to a Foreign Subsidiary at least the same extent as in effect immediately prior to such merger or (II) to a Receivables Subsidiaryconsolidation);
(kxvii) any Subsidiary Guarantor may transfer, lease or license assets to any other Subsidiary Guarantor that is a Subsidiary of SCIS, and Caterair may transfer, lease or license assets to any Subsidiary Guarantor that is a Subsidiary of SCIS, in each case so long as the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Document in the assets so transferred, leased or licensed shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer, lease or license);
(xviii) any Foreign Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, windmerge or consolidate with and into any Wholly-up Owned Foreign Subsidiary of the Borrower so long as such Wholly-Owned Foreign Subsidiary is the surviving corporation of such merger or dissolveconsolidation;
(lxix) any Foreign Subsidiary of the Borrower may transfer, lease or license assets to any Wholly-Owned Domestic Subsidiary of the Borrower or to any Wholly-Owned Foreign Subsidiary of the Borrower;
(xx) the Borrower, Caterair and their respective Subsidiaries may lease or sublease to other Persons any redundant Flight Kitchens (as determined in clause (x) above in this Section 9.02) or any non-operating Flight Kitchen so long as such lease or sublease does not materially interfere with the conduct of business of the Borrower, Caterair or any such Subsidiary; and
(xxi) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets shall have the right to sell up to a Receivables 51% equity interest in the Foreign Subsidiary and or Foreign Subsidiaries (or the -72- 80 foreign holding company of such Receivables Foreign Subsidiary may sell and make other transfers or Foreign Subsidiaries) that own the European Flight Kitchens of Receivables Facility Assets Caterair that were purchased pursuant to the Issuertransactions contemplated by the Master Agreement and up to 51% of the equity interest in Caterair Portugal that is owned by the Credit Parties, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
Lufthansa Companies so long as (mi) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
such sale is at fair market value (nas determined in good faith by the Board of Directors of the Borrower), (ii) all of the proceeds thereof shall consist of cash, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 9.08 and its Subsidiaries may consummate 9.09 for the US Commodity Business Sale provided that not less than 75% Test Period then most recently ended, with such financial covenants to be calculated on a pro forma basis as if such sale (and the application of the Net Sale Proceeds therefrom are used within 90 days therefrom) had occurred on the first day of such Test Period, and (iv) at least 15 Business Days prior to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); the consummation of such sale, the Borrower shall have delivered to each of the Banks a certificate of an Authorized Financial Officer of the Borrower setting forth in reasonable detail the pro forma calculations required to establish compliance with preceding clause (iii) repay Receivables Facility Attributed Indebtedness (with such pro forma calculations to be made on a basis reasonably satisfactory to the Co-Arrangers and consistent with Regulation S-X under the Securities Act) (it being understood and agreed that the Borrower and the Lufthansa Companies may structure the sale described above in this Section 9.02(xxi) through the creation of a new foreign holding company in which the Borrower would own (directly and/or indirectly) at least 49% of the equity interest and the Lufthansa Companies would own the remaining equity interest, with the Lufthansa Companies' contribution thereto to be in the form of cash and the Borrower's contribution thereto to be in the form of the equity interest or interests in the Foreign Subsidiary or Foreign Subsidiaries (ivor the foreign holding company of such Foreign Subsidiary or Foreign Subsidiaries) make a voluntary prepayment that own such European Flight Kitchens). To the extent the Required Banks waive the provisions of Term Loans pursuant this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 4.39.02, such Collateral shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions as they deem appropriate in order to effect the release of the respective Collateral from the Liens created by the respective Security Documents.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by Section 8.49.07;
(bii) each of the Borrower and its Subsidiaries may in the ordinary course of business sell, lease or otherwise dispose of any equipment or materials which, in the reasonable judgment of such Person, are obsolete, unusable or worn out;
(iii) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor), so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arms-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) at least 80% of the total consideration received by the Borrower or such Subsidiary is cash and paid at the time of the closing of such sale and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $250,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) at least 80% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 4.02(e) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iv) shall not exceed $10,000,000 in any fiscal year of the Borrower;
(v) Investments may be made to the extent permitted by Section 8.79.05;
(cvi) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 9.04(iv));
(dvii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents inventory in the ordinary course of business other than to a Receivables Subsidiarybusiness;
(eviii) the Transaction (including the earn-out payment described in Section 1.4(b) to the Asset Purchase Agreement) shall be permitted;
(ix) the Borrower and each of its Subsidiaries may acquire assets or the capital stock of any Person, including by merger, so long as the survivor of such merger is, or becomes at such time, a Subsidiary Guarantor (any such acquisition, a "Permitted Acquisition" and the date of consummation of any such acquisition, an "Acquisition Date"), provided that (i) the sum of the aggregate cash and Cash Equivalents plus the aggregate market value of all other consideration paid by the Borrower and its Subsidiaries (including any Indebtedness assumed by the Borrower or any Subsidiary) in connection with (x) any one such Permitted Acquisition shall not exceed $40,000,000 and (y) all such Permitted Acquisitions shall not exceed $60,000,000; (ii) no Default or Event of Default exists at the time of such acquisition or will exist as a result thereof; (iii) in respect of each Permitted Acquisition (or of all Permitted Acquisitions closing on the same date), the Borrower shall have delivered to the Agents an officer's certificate executed by an authorized officer of the Borrower demonstrating that on a Pro Forma Basis determined as if such Permitted Acquisition (or Acquisitions) had been consummated (and any Indebtedness to be incurred to finance such Permitted Acquisition had been incurred) on the first day of the last Test Period of the Borrower then last ended, the Borrower would have been in compliance with Sections 9.08 through 9.10, inclusive, for such Test Period; and (iv) the principal place of business of, and at least 80% of the assets of, each such Acquired Business shall be located in the United States;
(x) the Borrower may transfer any assets to a Subsidiary Guarantor, and any Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Subsidiary Guarantor, in each case, so long as (i) the Borrower or the respective Subsidiary Guarantor is the surviving corporation of any such transaction, (ii) in the case of any such transaction involving a non-Wholly-Owned Subsidiary, the only consideration paid to third parties in connection therewith are shares of common stock of the Borrower and (iii) in the case of any transaction between or among the Borrower and the Subsidiary Guarantors, all Liens granted pursuant to the Security Documents on any property or assets involved shall remain in full force and effect (with at least the same priority as such Lien would have had if such transfer pursuant to this clause (x) had not occurred);
(xi) any Foreign Subsidiary of the Borrower may merge or consolidate with and into, or be liquidated into, or transfer any of its assets to, the Borrower or any Foreign Subsidiary so long as in the case of any such merger or consolidation, the Borrower or any Foreign Subsidiary is the surviving corporation of any such transaction; and
(xii) each of the Borrower and its Subsidiaries may sell or discount, Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which good faith by the Borrower or such Subsidiary Subsidiary, as the case may reasonably determine are difficult be). To the extent the Required Banks waive the provisions of this Section 9.02 with respect to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part sale of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patentsCollateral, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses Collateral is sold as permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower 9.02 (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to thereof), such Collateral shall be used in the business referred to in Section 8.9 sold free and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all clear of the net proceeds of any such disposition are used to acquire such other propertyLiens created by the Security Documents, then dispositions in an amount equal to and the net proceeds used to acquire such other property) Administrative Agent and the Collateral Agent shall be disregarded for purposes of calculations pursuant authorized to this Section 8.3(i) (and shall otherwise be take any actions deemed appropriate in order to be permitted under this Section 8.3) from and after effect the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) all or any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials, supplies and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale except that the following transactions (and Leaseback Transaction, except thatagreements related thereto) shall be permitted:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made to the extent permitted (although any Capital Expenditures constituting a Permitted Acquisition shall be governed by clause (xi) of this Section 8.49.02);
(bii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell uneconomic, obsolete or worn-out equipment, materials or other assets in the ordinary course of business, provided that the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iii) shall not exceed $1,000,000 in any fiscal year of the Borrower;
(iv) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor unless all of the capital stock of such Subsidiary Guarantor is sold), so long as (except in the case of asset swaps, which may be done in compliance with clause (xviii) of this Section 9.02 and without regard to the requirements set forth in this clause (iv)) (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) the total consideration received by the Borrower or such Subsidiary is at least 75% cash, which cash is paid at the time of the closing of such sale, PROVIDED that the amount of any liabilities (as shown on the Borrower's or such Subsidiary's most recent balance sheet) of the Borrower or any Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this clause (x), (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 3.03(c) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (iv) (including, for this purpose, the amount of any assumed liabilities referred to in clause (x) above) shall not exceed $5,000,000 in any fiscal year of the Borrower; PROVIDED that notwithstanding anything to the contrary contained in this clause (iv), with respect to any one asset sale during the term of this Agreement, the aggregate amount of the proceeds received from such asset sale may exceed $5,000,000 so long as they do not exceed $20,000,000;
(v) Investments may be made to the extent permitted by Section 8.79.05;
(cvi) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in (so long as any such lease does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(iv));
(dvii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)thereof;
(fviii) each of the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and grant leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)its Subsidiaries;
(gix) any Subsidiary of the Borrower (other than a Receivables Subsidiaryx) may be merged merged, consolidated or consolidated (x) liquidated with or into the Borrower so long as the Borrower is the surviving entitycorporation of such merger, consolidation or liquidation and (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower all or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)Borrower;
(kx) any Subsidiary of the Borrower (other than a Receivables Subsidiaryx) may voluntarily liquidatebe merged, windconsolidated or liquidated with or into any other Subsidiary of the Borrower so long as (i) in the case of any such merger, consolidation or liquidation involving a Subsidiary Guarantor, the Subsidiary Guarantor is the surviving corporation of such merger, consolidation or liquidation and (ii) in addition to the requirements or preceding clause (i), in the case of any such merger, consolidation or liquidation involving a Wholly-up Owned Subsidiary of the Borrower, the Wholly-Owned Subsidiary is the surviving corporation of such merger, consolidation or dissolveliquidation, and (y) may transfer all or any portion of its assets to any Subsidiary Guarantor;
(lxi) each of the Borrower and the Subsidiary Guarantors may acquire all or substantially all of the assets of any Person (or all or substantially all of the assets of a product line or division of any Person) or at least 90% of the capital stock of any Person (any such acquisition permitted by this clause (xi), a "Permitted Acquisition"), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each of the representations and warranties contained in Section 7 shall be true and correct in all material respects both before and after giving effect to such Permitted Acquisition, (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 9.01 or 9.04, as the case may be, (iv) the entity being acquired shall be engaged in a similar or related business as the Borrower and its Subsidiaries, (v) the only consideration paid by the Borrower or any Subsidiary Guarantor in connection with any Permitted Acquisition consists solely of cash, notes (to the extent permitted under Section 9.04(xi)), common stock of Holdings and/or preferred stock of Holdings and (vi) at least 10 Business Days prior to the consummation of any Permitted Acquisition, the Borrower shall have delivered to the Administrative Agent and each of the Lenders a certificate of Holdings' Chief Financial Officer certifying (and showing the calculations therefor in reasonable detail) that Holdings and its Subsidiaries would have been in compliance with the financial covenants set forth in Sections 9.07, 9.08 and 9.09 for the Test Period then most recently ended prior to the date of the consummation of such Permitted Acquisition, in each case with such financial covenants to be determined on a PRO FORMA basis as if such Permitted Acquisition had been consummated on the first day of such Test Period (and assuming that any Indebtedness incurred, issued or assumed in connection therewith had been incurred, issued or assumed on the first day of, and had remained outstanding throughout, such Test Period);
(xii) each of the Borrower and its Subsidiaries may, directly in the ordinary course of business, license, as licensor or indirectlylicensee, sellpatents, contribute trademarks, copyrights and make other transfers know-how to third Persons and to one another, so long as any such license by the Borrower or its Subsidiaries in its capacity as licensor does not prohibit the granting of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers Lien by the Borrower or any of Receivables Facility Assets to the Issuer, in each case its Subsidiaries pursuant to the Receivables Documents under a Permitted Accounts Receivables SecuritizationSecurity Agreement in such license or in the intellectual property covered thereby;
(mxiii) Foreign each of Holdings and its Subsidiaries may enter into Foreign Factoring Transactions; andsell Cash Equivalents permitted to be held by them pursuant to Section 9.05(ii) so long as each such sale is for cash and at fair market value (as determined in good faith by Holdings or such Subsidiary, as the case may be);
(nxiv) each of Holdings and its Subsidiaries may pay Dividends to the extent permitted by Section 9.03;
(xv) Recovery Events shall be permitted;
(xvi) each of the Borrower and its Subsidiaries may consummate enter into sale and leaseback transactions with respect to their equipment and Real Property acquired after the US Commodity Business Sale provided that not less than 75% Effective Date, so long as (u) no Default or Event of Default then exists or would result therefrom, (v) each such sale and leaseback transaction is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (w) the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, (x) the Net Sale Proceeds therefrom are used within 90 days applied and/or reinvested as (and to the extent) required by Section 3.03(c), (iy) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment the aggregate amount of Term Loans proceeds received from all sale and leaseback transactions pursuant to this clause (xvi) shall not exceed $1,000,000 in any fiscal year of the Borrower and (z) to the extent that any such sale and leaseback transaction results in a Capitalized Lease Obligation, such Capitalized Lease Obligation is permitted under Section 4.39.04(iv);
(xvii) Holdings and its Subsidiaries, considered together, may convey, sell, lease or otherwise dispose of its property or assets, to the extent not otherwise permitted under this Section 9.02, in an aggregate amount not to exceed $100,000;
(xviii) Holdings and its Subsidiaries may simultaneously exchange its assets for assets of a similar nature and value so long as (x) no Default or Event of Default then exists or would result therefrom, (y) each such asset swap is in an arm's length transaction and (z) all actions are taken to create or maintain the Liens and security interests purported to be granted under the Security Documents; and
(xix) WPIV may be liquidated, dissolved, wound up or merged with or into Holdings. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to Holdings or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the release of such Collateral from the Liens created by the Security Documents.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The No Borrower will, or will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, intangible assets, goods and Leaseback TransactionReal Property in the ordinary course of business) of any Person, except thatthat the following shall be permitted:
(ai) Restricted Payments may Capital Expenditures by Aleris and its Subsidiaries shall be made permitted (other than Capital Expenditures consisting of the acquisition of an Acquired Entity or Business except to the extent otherwise permitted by pursuant to Section 8.410.05);
(bii) each of Aleris and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.710.05;
(civ) each of Aleris and its Subsidiaries may sell or otherwise dispose of excess, obsolete, damaged or worn-out assets in the Borrower ordinary course of business;
(v) Aleris and its Subsidiaries may sell assets (other than the Equity Interests of any Subsidiary unless all of the Equity Interests of such Subsidiary then owned by Aleris and its Subsidiaries are sold in a sale permitted by this clause (v), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and Aleris or the respective Subsidiary receives at least fair market value (as determined in good faith by Aleris or such Subsidiary, as the case may be), (x) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(c) and (y) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $25,000,000 in any fiscal year of Aleris;
(vi) each of Aleris and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04(v));
(dvii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower Aleris and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any financing transaction or bulk sale or financing sale, provided that such accounts receivable were not included as Eligible Accounts in the Borrowing Base Certificate most recently delivered or, if so included, the exclusion of receivables)such accounts as Eligible Accounts (after giving effect to any concurrent prepayment of the Loans) would not cause the Borrowing Base limitations described in Section 5.02(a) to be exceeded;
(fviii) the Borrower each of Aleris and its Subsidiaries may license grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of Aleris or any of its patentsSubsidiaries, trade secrets, know-how and other intellectual in each case so long as no such grant (x) otherwise restricts any Credit Party’s right to xxxxx x xxxx on such assets or property relating to in favor of the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Collateral Agent or (y) would adversely affect any assignee of Collateral or the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person Collateral Agent’s rights or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)remedies with respect thereto;
(gix) any Subsidiary of the Borrower Aleris (other than a Receivables Subsidiarythe European Borrower or the Distribution Subsidiaries) may merge with and into, or be merged dissolved or consolidated (x) with liquidated into, or into the Borrower transfer any of its assets to, Aleris or any Wholly-Owned Domestic Subsidiary of Aleris which is a U.S. Credit Party so long as (i) in the Borrower case of any such merger, dissolution or liquidation involving Aleris, Aleris is the surviving entitycorporation of any such merger, dissolution or liquidation, (yii) with or into any one or more in all other cases, a Wholly-Owned Subsidiaries Domestic Subsidiary which is (or thereupon becomes) a U.S. Credit Party is the surviving corporation of any such merger, dissolution or liquidation, (iii) the security interests granted to the Collateral Agent for the benefit of the Borrower Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (other than an Unrestricted Subsidiaryto at least the same extent as in effect immediately prior to such merger, Airstar Corporationdissolution or liquidation), Huntsman Headquarters Corporation or IRIC); provided, however, and (iv) in the case of any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary or Subsidiaries of Aleris, such consideration shall be permitted to be paid at such time only to the extent that it could otherwise have been paid pursuant to (and Aleris shall be required to satisfy the provisions of) Section 10.05(xv);
(x) any Distribution Subsidiary may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, the European Borrower or any other Distribution Subsidiary;
(xi) any Canadian Subsidiary of Aleris may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, a Canadian Borrower or Canadian Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation, the surviving corporation of any such merger, dissolution or liquidation is, or concurrently therewith becomes a Canadian Credit Party, (ii) the security interests and charges granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Canadian Borrower shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation) and constitute a valid first ranking priority security interest or charge subject to no other Liens except Permitted Liens, and (iii) in the case of any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary of Aleris, such consideration shall be permitted to be paid at such time only to the extent that it could otherwise have been paid pursuant to (and Aleris shall be required to satisfy the provisions of) Section 10.05(xiv) or Section 10.05(xv);
(xii) any Subsidiary of Aleris which is not a Credit Party may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Subsidiary of Aleris so long as such Wholly-Owned Subsidiary is the surviving corporation of any such merger, dissolution or liquidation;
(xiii) any Subsidiary of Aleris which is not a Wholly-Owned Subsidiary of Aleris and which is not a Credit Party may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to any other Subsidiary of Aleris so long as, in the case of mergers with and into a Credit Party, such Credit Party is the surviving entity of such merger and remains a Wholly-Owned Subsidiary of Aleris;
(xiv) any Subsidiary of Aleris which is not a Credit Party may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to any other Subsidiary of Aleris and any non Wholly-Owned Subsidiary which is a Credit Party may merge into, or be dissolved or liquidated into, or transfer any of its assets to any other Credit Party, in each case so long as (zi) with or into any Person in connection with the consummation of an Acquisition; providedif, however, that after giving effect to such merger merger, dissolution or consolidation liquidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose percentage ownership of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower Aleris and its Subsidiaries in any such Fiscal Year Subsidiary or its assets is reduced, the value of such reduction shall be permitted as a Dividend pursuant to this clause Section 10.03, (iii) plus the aggregate net book value security interests and charges (if any) granted to the Collateral Agent for the benefit of all the Secured Creditors pursuant to the Security Documents in the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets Subsidiaries party to such transaction shall remain in full force and effect and perfected (to at least the Borrower same extent as in effect immediately prior to such merger, dissolution or liquidation) and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; providedconstitute a valid first ranking priority security interest or charge subject to no other Liens except Permitted Liens, however, that if and (Aiii) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds case of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations transaction pursuant to this Section 8.3(i) (and shall otherwise be deemed which any consideration is paid to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other a Person that is not a Wholly-Owned Subsidiary of Aleris, such consideration shall be permitted to be paid at such time only to the Borrower extent that it could otherwise have been paid pursuant to (other than and Aleris shall be required to satisfy the provisions of) Section 10.03;
(Ixv) from the Borrower each of Aleris and its Subsidiaries may sell or a Domestic Subsidiary to a Foreign Subsidiary or liquidate Cash Equivalents, in each case for cash at fair market value (II) to a Receivables Subsidiaryas determined in good faith by Aleris);
(kxvi) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower Aleris and its Subsidiaries may consummate sell the US Commodity Business Sale provided that not less than 75% assets described on Schedule XV so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm’s-length transaction and Aleris or the respective Subsidiary receives at least fair market value (as determined in good faith by Aleris or such Subsidiary, as the case may be) and (y) the Net Sale Proceeds therefrom are used within 90 days applied and/or reinvested as (and to the extent) required by Section 5.02(c);
(ixvii) repay Senior transfers or sales of assets (s) among the U.S. Credit Parties, (t) among Wholly-Owned Canadian Subsidiaries of Aleris which are Credit Parties, (u) among the European Borrower and its Wholly-Owned Subsidiaries which are Credit Parties, (v) among Wholly-Owned Foreign Subsidiaries (that are not Credit Parties) of Aleris, (w) by any Subsidiary of Aleris to any U.S. Credit Party, (x) by any Foreign Subsidiary of Aleris that is not a Credit Party to any Wholly-Owned Foreign Subsidiary of Aleris, (y) by any U.S. Credit Party to any Wholly-Owned Canadian Subsidiary or Wholly-Owned European Subsidiary of Aleris that is a Credit Party, and (z) by any U.S. Credit Party to any Wholly-Owned Foreign Subsidiary (that is not a Credit Party) of Aleris, so long as, (I) in the case of any transfer from one Credit Party to another Credit Party, any security interests granted to the Collateral Agent for the benefit of the Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans Creditors pursuant to the relevant Security Documents in the assets so transferred shall (A) remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such transfer) or (B) be replaced by security interests granted to the relevant Collateral Agent for the benefit of the relevant Secured Creditors pursuant to the relevant Security Documents, which new security interests shall be in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such transfer) and (II) in the case of any transfer pursuant to preceding clause (z) (other than sales or transfer of assets (x) located at the 0000 Xxxx Xxxxxx Xxxxxx, Long Beach, California and (y) located or previously located at Xxxxx Xxxx 0, Xxxxxxxxx, XX 00000), either (A) the Payment Conditions are satisfied (both before and after giving effect to any such asset sale or transfer) at such time or (B) such transfer of assets would otherwise be permitted under Section 4.310.05;
(xviii) Permitted Acquisitions may be made to the extent permitted by Section 9.15;
(xix) Aleris and its Subsidiaries may consummate Asset Swaps, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such Asset Swap is in an arm’s length transaction and Aleris or the respective Subsidiaries receive at least fair market value (as determined in good faith by Aleris or such Subsidiary, as the case may be), (x) the Net Sale Proceeds therefrom (if any) are applied and/or reinvested as (and to the extent) required by Section 5.02(d), (y) the Collateral Agent shall have a perfected Lien on the assets acquired pursuant to such Asset Swap at least to the same extent for the assets sold pursuant to such Asset Swap (immediately prior to giving effect thereto) subject to no other Lien other than Permitted Liens and (z) the aggregate fair market value of all assets sold pursuant to this clause (xix) shall not exceed $25,000,000 in the aggregate since the Initial Borrowing Date; provided that (1) so long as the assets acquired by Aleris or any of its Subsidiaries pursuant to the respective Asset Swap are located in the same jurisdiction (or in the case of the United States, any State of the United States) as the assets sold by Aleris or such Subsidiary or (2) neither the fair market value limitation in this clause (xix) nor the $25,000,000 aggregate cap on such transaction described in clause (z) above will apply to such Asset Swap;
(xx) the Transaction may be consummated on or about the Initial Borrowing Date; and
(xxi) European Distribution Subsidiaries, Transitory European Subsidiaries and, prior to the European Restructuring Completion Date, (or thereafter, as contemplated by Section 13.25) Specified European Manufacturing Subsidiaries may sell Accounts to the European Borrower pursuant to Receivables Purchase Agreements. Notwithstanding anything to the contrary contained above, in no event shall the Equity Interests of (A) any Borrower be sold, transferred or otherwise disposed of (x) to any Person that is not a Credit Party (or, in the case of the European Borrower, to a Person not a European Parent Guarantor), unless, in the case of a U.S. Borrower (other than Aleris) or a Canadian Borrower, (1) no Default or Event of Default is then in existence or would exist after giving effect thereto, and (2) each of the conditions set forth in Section 7.03 shall be satisfied at such time (after giving effect to such disposal), or (y) pursuant to a sale, transfer or other disposition which would give rise to a Change of Control or (B) any Distribution Subsidiary be sold, transferred or otherwise disposed of to a Person other than the European Borrower or another Distribution Subsidiary which is a Wholly-Owned Subsidiary. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (other than to Aleris or a Subsidiary thereof which is a Credit Party), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale sale- leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business; provided that any such purchase or acquisition does not constitute a Capital Expenditure) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of the Borrower and its Subsidiaries may sell or otherwise dispose of obsolete, uneconomic or worn-out assets (including trucks, tractors, tires, trailers or terminals and related equipment and real property and related fixtures) in the ordinary course of business and consistent with past practices of the Borrower and its Subsidiaries;
(v) the Borrower and its Subsidiaries may sell assets (other than the capital stock or other equity interests of any Subsidiary unless all of the capital stock and other equity interests of such Subsidiary then owned by the Borrower and its Subsidiaries are sold in a sale permitted by this clause (v), or if less than all of such capital stock or other equity interests are sold, then the securities retained shall be deemed an Investment subject to the limitations set forth in Section 9.05), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) the consideration received by the Borrower or such Subsidiary consists of at least 80% cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(f) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $75,000,000 in any fiscal year of the Borrower;
(vi) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(v));
(dvii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable and related promissory notes arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any financing transaction or bulk sale or financing of receivables)sale;
(fviii) each of the Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee conduct of the Administrative Agent without the consent business of the licensee Borrower and its Subsidiaries taken as a whole, in each case so long as no -71- such license shall (i) transfer ownership grant otherwise restricts any Credit Party's right to grant a lien on such assets or property in favor of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Xxxxxxxxxx Agent;
(gI) any Wholly-Owned Subsidiary of the Borrower (other than a Receivables Subsidiary) may merge with and into, or be merged dissolved or consolidated (x) with liquidated into, or into transfer any of its assets to, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving entitycorporation of any such merger, dissolution or liquidation, (yii) with or into any one or more in all other cases, a Wholly-Owned Subsidiaries Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, (iii) in all cases, the security interests granted to the Collateral Agent for the benefit of the Borrower Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (other than an Unrestricted Subsidiaryto at least the same extent as in effect immediately prior to such merger, Airstar Corporationdissolution or liquidation), Huntsman Headquarters Corporation or IRIC); provided, however, (iv) in the case of any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary or Subsidiaries of the Borrower, such consideration shall be permitted to be paid at such time only to the surviving entity or extent that it could otherwise have been paid pursuant to (zand the Borrower shall be required to satisfy the provisions of) Section 9.03(i)(y) and (II) any Wholly-Owned Foreign Subsidiary may be merged with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a other Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Foreign Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (Bv) so long as the Borrower or such Roadway Bonds are outstanding and except for the Merger, neither Roadway nor any Domestic Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) Roadway shall be disregarded for purposes of calculations pursuant permitted to this Section 8.3(i) (and shall otherwise merge with or into, or be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) dissolved or liquidated into, the Borrower or any Subsidiary of the Borrower may sell, lease, transfer other than Roadway or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned a Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)Roadway;
(kx) any Subsidiary of Permitted Acquisitions may be made to the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolveextent permitted by Section 8.14;
(lxi) on and after the Borrower Permitted Receivables Facility Transaction Date for a Permitted Receivable Transaction, the relevant Receivables Sellers may (x) contribute cash to the relevant Receivables Entity the proceeds of which are used to acquire Permitted Receivables Facility Assets from such Receivables Sellers and its Subsidiaries may, directly or indirectly, sell, contribute (y) transfer and make other transfers of reacquire Permitted Receivables Facility Assets to a Receivables Subsidiary and from such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the IssuerEntity, in each case pursuant to to, and in accordance with the terms of, the relevant Permitted Receivables Documents under a Permitted Accounts Receivables SecuritizationFacility Documents, provided that at no time may the aggregate principal amount of the Attributable Receivable Indebtedness exceed $300,000,000;
(mxii) Foreign Subsidiaries on and after the Permitted Receivables Facility Transaction Date for a Permitted Receivable Transaction, the relevant Receivables Entity may enter into Foreign Factoring Transactionstransfer and reacquire Permitted Receivables Facility Assets (to the extent acquired from the Receivables Sellers as provided in clause (xi) above) pursuant to, and in accordance with the terms of, the relevant Permitted Receivables Facility Documents, provided that at no time may the aggregate principal amount of the Attributable Receivable Indebtedness exceed $300,000,000; and
(nxiii) the Borrower and its Subsidiaries may consummate sell or exchange specific items of equipment, real property and related fixtures so long as the US Commodity Business Sale provided that not less than 75% purpose of the Net Sale Proceeds therefrom are used each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment, real property and related fixtures which are the functional equivalent of the item of equipment, real property and related fixtures so sold or exchanged. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (i) repay Senior Secured Notes (2010other than to the Borrower or a Subsidiary thereof); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment , such Collateral shall be sold free and clear of Term Loans pursuant the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to release Liens created by any of the Security Documents or otherwise to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Each Credit Party will not, and will not permit any of its their respective Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any Sale Leaseback, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials, equipment, goods and services in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments may Capital Expenditures by the Company and its Subsidiaries shall be made to the extent permitted by Section 8.4(other than Capital Expenditures constituting a Permitted Acquisition);
(b) the Company and its Subsidiaries may sell inventory in the ordinary course of business;
(c) the Company and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(d) Investments may be made to the extent permitted by Section 8.710.05;
(ce) the Company and its Subsidiaries may sell assets so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration received by the Company or such Subsidiary consists of at least 75% (or, in the case of ABL Priority Collateral, 100%) cash or Cash Equivalents and is paid at the time of the Borrower closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 5.02(c) and (v) unless the Payment Conditions are satisfied both before and after giving effect to such sale, the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (e) shall not exceed $35,000,000 in any Fiscal Year; provided, however, notwithstanding the foregoing, in no event shall (i) the Equity Interests of the Company be sold pursuant to this clause (e), (ii) all or substantially all of the assets of the Company and its Subsidiaries (taken as a whole) be sold pursuant to this clause (e) or (iii) the Coffeyville Refinery or the Wynnewood Refinery be sold pursuant to this clause (e);
(f) the Company and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04(d));
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(eg) the Borrower Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiarytransaction;
(h) the Borrower Company and its Subsidiaries may sellgrant licenses, transfer sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Company or any of its Subsidiaries, in each case so long as no such grant otherwise dispose of any affects the Collateral Agent’s security interest in the asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunderproperty subject thereto;
(i) in any Fiscal Year, the Borrower Company or any Subsidiary of the Company may dispose of convey, sell or otherwise transfer all or any part of its business, properties and assets (including in connection with Sale and Leaseback Transactions not involving Indebtednessto any Qualified Credit Party, Capitalized Lease Obligations or an Operating Financing Lease) if so long as any security interests granted to the aggregate net book value (at Collateral Agent for the time benefit of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year Secured Parties pursuant to this clause (i) plus the aggregate net book value of all Security Documents in the assets then proposed so transferred shall remain in full force and effect and perfected (to be disposed of does not exceed 12.5% of at least the Consolidated Net Tangible Assets the Borrower and its Subsidiaries same extent as of the end of the in effect immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect prior to such property, then such dispositions (or, transfer) and all actions required to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertymaintain said perfected status have been taken;
(j) the Borrower or any Subsidiary of the Borrower Company may sellmerge or consolidate with and into, leaseor be dissolved or liquidated into, transfer or otherwise dispose any Qualified Credit Party (except that ABL Priority Collateral may only be transferred among Borrowers, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Company, the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving another Borrower, such Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (iii) in all other cases, a Qualified Credit Party is the surviving or continuing corporation of its assets any such merger, consolidation, dissolution or liquidation, and (iv) any security interests granted to the Borrower or any other Wholly-Owned Subsidiary Collateral Agent for the benefit of the Borrower Secured Parties pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (other than (Ito at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) from the Borrower or a Domestic Subsidiary and all actions required to a Foreign Subsidiary or (II) to a Receivables Subsidiary)maintain said perfected status have been taken;
(k) any Subsidiary of the Borrower Company that is not a Credit Party may merge or consolidate with and into, or be dissolved or liquidated into, any other Subsidiary of the Company that is not a Credit Party, so long as (other than i) in the case of any such merger, consolidation, dissolution or liquidation involving a Receivables SubsidiaryWholly-Owned Subsidiary of the Company, a Wholly-Owned Subsidiary of the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (ii) may voluntarily liquidateto the extent that the Collateral Agent has a pledge of the Equity Interests of either of the Subsidiaries subject to such transaction pursuant to the Pledge and Security Agreement, wind-up such pledge shall continue in the Equity Interests of the surviving or dissolvecontinuing entity of any such merger, consolidation, dissolution or liquidation and all actions required to maintain said pledge have been taken;
(l) Permitted Acquisitions may be consummated in accordance with the Borrower requirements of Section 9.13;
(m) the Credit Parties and their respective Subsidiaries may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business, in each case for cash at Fair Market Value;
(n) (i) the Credit Parties and their respective Subsidiaries may from time to time sell common units or other Equity Interests which they own in the MLP;
(o) the Company and its Subsidiaries maymay engage in Sale Leasebacks so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Sale Leaseback is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration received by the Company or such Subsidiary consists of at least 75% cash and is paid at the time of the closing of such Sale Leaseback, (iv) the aggregate amount the cash and non-cash proceeds received from all Sale Leasebacks pursuant to this clause (o) shall not exceed $100,000,000, and (v) the Net Sale Proceeds from any Sale Leaseback in respect of ABL Priority Collateral shall be applied to the Obligations in accordance with this Agreement;
(p) the Credit Parties and their Subsidiaries may convey, sell, lease or otherwise dispose of assets or properties (other than ABL Priority Collateral) which have a Fair Market Value that does not exceed $5,000,000 in the aggregate in any Fiscal Year; and
(q) The MLP may merge (such transaction, the “Credit Party Merger”) with any newly-organized direct or indirect Subsidiary of a Qualifying Owner that does not have any Subsidiaries other than the MLP and its Subsidiaries (the “Merger Subsidiary”); provided, that,
(i) the Merger Subsidiary does not have any material assets other than (x) Equity Interests in the MLP and (y) assets constituting the consideration payable in such merger to the holders of Equity Interests in the MLP (whether payable to such Persons (A) in accordance with the terms of the agreement pursuant to which such merger is to be effected, (B) as a result of the exercise by such Persons of their rights to appraisal in accordance with Section 262 of the Delaware General Corporation Law or any analogous law or (C) as otherwise required by law (the consideration described in this clause (y), collectively, the “Merger Consideration”);
(ii) the Merger Subsidiary does not have any Indebtedness or other liabilities (except as permitted in clause (i) above);
(iii) the MLP is the surviving entity of such merger; and
(iv) no Default or Event of Default has occurred and is continuing or would result therefrom. For avoidance of doubt, it is understood that (i) the obligations of the Merger Subsidiary or any Credit Party to pay Merger Consideration (the “Merger Consideration Obligations”) shall not constitute “Indebtedness” for any purpose of this Agreement, (ii) so long as all payments by the Merger Subsidiary and the Credit Parties in respect of Merger Consideration Obligations are funded by equity contributions to the Merger Subsidiary or the MLP by a Qualifying Owner prior to or simultaneous with the making of such payments (the “Merger Consideration Contributions”), neither the incurrence of such Merger Consideration Obligations nor the performance thereof by the Merger Subsidiary or any Credit Party shall constitute Investments or Dividends for any purpose of this Agreement, (iii) the Credit Party Merger shall not be prohibited under Section 10.06, and (iv) because (and so long as) Qualifying Owners will continue to hold, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less more than 7550% of the Net Sale Proceeds therefrom are used within 90 days aggregate outstanding common stock as a result of the Credit Party Merger, the completion of the Credit Party Merger shall not constitute a Change of Control. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (i) repay Senior Secured Notes other than to any Credit Party or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect and/or evidence the foregoing. Notwithstanding anything to the contrary contained above in this Section 10.02 or elsewhere in this Agreement, the Credit Parties and any of their respective Subsidiaries shall not be permitted to sell or transfer the Equity Interests of, or all or substantially all of the assets of, any Borrower to any Person (2010other than a Credit Party); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans , unless all Obligations owing by such Borrower have been paid in full in cash or such Obligations shall have been assumed by the other Borrowers pursuant to Section 4.3an agreement in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or, other than pursuant to the Merger Agreement, purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.48.07;
(bii) each of the Borrower and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell obsolete or worn-out equipment or materials;
(iv) each of the Borrower and its Subsidiaries may sell other assets, provided that the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (iv) shall not exceed $75,000 in any fiscal year of the Borrower;
(v) each of the Borrower and its Subsidiaries may sell assets (other than the capital stock of any Subsidiary Guarantor), so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (y) at least 75% of the total consideration received by the Borrower or such Subsidiary is cash and is paid at the time of the closing of such sale, and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $1,000,000 in any fiscal year of the Borrower;
(vi) Investments may be made to the extent permitted by Section 8.78.05;
(cvii) each of the Borrower and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capital Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 8.04(iv));
(dviii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)thereof;
(fix) each of the Borrower and its Subsidiaries may license grant licenses, sublicenses, leases or subleases to other Persons in the ordinary course of business and not materially interfering with the conduct of the business of the Borrower or any of its patents, trade secrets, knowSubsidiaries;
(x) the Borrower and its Wholly-how and other intellectual property relating Owned Subsidiaries may acquire all or substantially all of the assets of any Person (or all or substantially all of the assets of a product line or division of any Person) or 100% (or at least 75% to the manufacture extent provided below) of chemical products the capital stock of any Person (any such acquisition permitted by this clause (x), as well as any acquisition permitted by clause (xi) of this Section 8.02, a "Permitted Acquisition", provided, however, that the Merger shall not constitute a Permitted Acquisition), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each of the representations and by-products (the “Technology”) provided that such license warranties contained in Article VI shall be assignable true and correct in all material respects both before and after giving effect to such Permitted Acquisition, (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 8.01 or 8.04, as the case may be, (iv) at least 10 Business Days prior to the consummation of any Permitted Acquisition, Holdings shall deliver to the Administrative Agent and each of the Lenders a certificate of Holdings' Chief Financial Officer certifying (and showing the calculations therefor in reasonable detail) that Holdings would have been in compliance with the financial covenants set forth in Sections 8.08, 8.09 and 8.10 for the Measurement Period then most recently ended prior to the date of the consummation of such Permitted Acquisition, in each case with such financial covenants to be determined on a pro forma basis as if such Permitted Acquisition had been consummated on the first day of such Measurement Period (and assuming that any Indebtedness incurred, issued or assumed in connection therewith had been incurred, issued or assumed on the first day of, and had remained outstanding throughout, such Measurement Period), (v) the only consideration paid by the Borrower or any assignee of its Wholly-Owned Subsidiaries in connection with any such Permitted Acquisition consists solely of cash (including as a result of any earnout, non-compete or deferred compensation arrangements), Indebtedness assumed to the extent permitted by Section 8.04, Qualified Seller Subordinated Debt, Holdings Common Stock and/or Holdings Preferred Stock, (vi) on or prior to December 31, 1999, the aggregate consideration paid in connection with all such Permitted Acquisitions in any fiscal year of the Administrative Agent Borrower (including, without limitation, any earnout, non-compete or deferred compensation arrangements, the consent aggregate principal amount of any Indebtedness assumed or issued in connection therewith and the fair market value of any Holdings Common Stock or Holdings Preferred Stock issued in connection therewith (as determined in good faith by Holdings)) does not exceed $7,500,000 in each of fiscal years 1998 and 1999, provided, however, if the amount actually expended in respect of all Permitted Acquisitions in fiscal year 1998 is less than the aggregate amount of Permitted Acquisitions permitted to be made in fiscal year 1998, such excess may be carried forward and utilized to make Permitted Acquisitions in fiscal year 1999, (vii) no more than $3,000,000 in the aggregate in any fiscal year of the licensee Borrower may be expended on Permitted Acquisitions in which the Borrower or a Wholly-Owned Subsidiary thereof acquires less than 100% of the capital stock of any Person and no such license shall (iviii) transfer ownership of such Technology after giving effect to any other Person or such Permitted Acquisition, the aggregate unutilized Commitments shall be at least $5,000,000;
(iixi) require in addition to the Permitted Acquisitions permitted by clause (x) of this Section 8.02, the Borrower and its Wholly-Owned Subsidiaries may make additional Permitted Acquisitions (A) with cash equity contributions and the net cash proceeds from the sale of capital stock of Holdings and Holdings Junior Subordinated Notes, in each case which are received by Holdings after the Effective Date and are contributed to the Borrower to pay any fees for any the extent that such use proceeds are not used (such licenses permitted by this 1) to make Capital Expenditures pursuant to Section 8.3(f8.07(f), hereafter “(2) to pay Dividends pursuant to Section 8.03(vi), (3) to make Investments pursuant to Section 8.05(xvi), (4) to repurchase or redeem outstanding Borrower Senior Subordinated Notes pursuant to Section 8.11(i) or (5) to prepay the Loans pursuant to Section 2.07(c) and (B) in any fiscal year of the Borrower (commencing on January 1, 1999) in an amount not to exceed 50% of Consolidated Net Income of Holdings for the immediately preceding fiscal year, in each case so long as each of the conditions set forth in Section 8.02(x) (other than clause (vi) thereof) have been satisfied in respect of each such Permitted Technology Licenses”)Acquisition;
(gxii) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may transfer any of its assets to the Borrower and may be merged merged, consolidated or consolidated (x) liquidated with or into the Borrower so long as the Borrower is the surviving entitycorporation of such merger, consolidation or liquidation;
(yxiii) any Subsidiary of the Borrower may transfer any of its assets to a Subsidiary Guarantor and may be merged, consolidated or liquidated with or into any one or more Wholly-Owned Subsidiaries other Subsidiary of the Borrower so long as (other than an Unrestricted Subsidiaryi) in the case of any such merger, Airstar Corporationconsolidation or liquidation involving a Subsidiary Guarantor, Huntsman Headquarters Corporation the Subsidiary Guarantor is the surviving corporation of such merger, consolidation or IRIC); providedliquidation and (ii) in the case of any such merger, however, that consolidation or liquidation involving a Wholly-Owned Subsidiary or Subsidiaries shall be of the surviving entity or (z) with or into any Person in connection with Borrower, the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned SubsidiarySubsidiary is the surviving corporation of such merger, consolidation or liquidation;
(hxiv) the Borrower and its Subsidiaries may sellsell or exchange specific items of equipment, transfer so long as the purpose of each sale or otherwise dispose exchange is to acquire (and results within 90 days of any asset such sale or exchange in connection with any Sale and Leaseback Transaction involving Indebtednessthe acquisition of) replacement items of equipment which are, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose reasonable business judgment of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus Subsidiaries, the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% functional equivalent of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as item of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets equipment so sold or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertyexchanged;
(jxv) the Borrower or any Foreign Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other a Wholly-Owned Foreign Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)Guarantor;
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nxvi) the Borrower and its Subsidiaries may consummate sell inventory to their respective Subsidiaries in the US Commodity Business Sale provided that not less ordinary course of business and consistent with past practices for resale by such Subsidiaries in the ordinary course of their business;
(xvii) the Borrower and the Subsidiary Guarantors may sell or otherwise transfer equipment to their Subsidiaries in the ordinary course of business so long as no more than 75% $1,000,000 of equipment is sold or transferred in any fiscal year of the Net Sale Proceeds therefrom are used within 90 days Borrower pursuant to this clause (i) repay Senior Secured Notes (2010xvii); and
(iixviii) repay Senior Notes any Foreign Subsidiary of the Borrower may enter into factoring arrangements with respect to its receivables in the ordinary course of business and consistent with the practices in the region in which such Foreign Subsidiary operates so long as no more than $500,000 of receivables are subject to such factoring arrangements at any one time outstanding. To the extent the Majority Lenders waive the provisions of this Section 8.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 8.02 (2012other than to Holdings or a Subsidiary thereof); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment , such Collateral shall be sold free and clear of Term Loans pursuant the Liens created by the Collateral Documents, and the Administrative Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower No Credit Agreement Party will, or will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than the liquidation of Cash Equivalents in the ordinary course of business), with respect to or enter into any such transaction involving all sale-leaseback transactions, or substantially all purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, and intangible assets in the Borrower, enter into an agreement ordinary course of business) of any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by Holdings and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) Holdings and each of its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) enter into transactions permitted under Section 9.01(v);
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) Holdings and each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in (so long as any such lease does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04);
(dv) each Subsidiary of the Borrower and its Subsidiaries Holdings may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and inventory in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(fvi) the Borrower Holdings and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person permitted to make Permitted Acquisitions so long as same are effected in connection accordance with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions requirements of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property8.13;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 1 contract
Samples: Credit Agreement (Big Flower Press Holdings Inc /Pred/)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than sales of inventory, with respect to raw materials, supplies and used or surplus equipment, in each case in the ordinary course of business), or enter into any such transaction involving sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) all or substantially all of the Equity Interests in or assets of the Borrowerany Person (each such purchase or acquisition, enter into an agreement “Acquisition”) (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments may be made to the extent permitted by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.7;
(ci) each of the Borrower and any of its Subsidiaries may lease (as lessor) real liquidate or personal otherwise dispose of obsolete or worn-out property in the ordinary course of business other than business, and may dissolve, liquidate or merge out of existence a Subsidiary, the continued existence of which is no longer materially advantageous to a Receivables Subsidiarythe Borrower or its Subsidiaries;
(dii) each of the Borrower and any of its Subsidiaries may make sales sell assets including pursuant to a transaction of merger or transfers consolidation, including the Equity Interests of inventorya Subsidiary of the Borrower so long as (x) no Default or Event of Default then exists or would result therefrom, Cash, Cash Equivalents and Foreign Cash Equivalents (y) in the ordinary course case of business the sale of the Equity Interests of any Credit Party, all of the Equity Interests of such Credit Party and its other than Subsidiaries are sold pursuant to a Receivables Subsidiarysuch sale and (z) the Fair Market Value of such assets when added to the Fair Market Value of all assets sold pursuant to this clause (ii) of the Borrower and its Subsidiaries previously sold pursuant to this Section 8.2(ii), does not exceed $350,000,000 in any Fiscal Year;
(eiii) each of the Borrower and any of its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and and, subject to Section 8.2(vii), not as part of any bulk financing transaction;
(iv) each of the Borrower and any of its Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries;
(v) each of the Borrower and any of its Subsidiaries may convey, lease, rent, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or to any other Subsidiary of the Borrower;
(vi) each of the Borrower and any of its Subsidiaries may merge or consolidate with and into, be dissolved or liquidated into, or amalgamate with any other Person, so long as (i) in the case of any such merger, consolidation, dissolution, liquidation or amalgamation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution, liquidation or amalgamation and such entity is a U.S. Person, and (ii) in all other cases, the surviving or continuing corporation of any such merger, consolidation, dissolution, liquidation or amalgamation is a Subsidiary of the Borrower;
(vii) each of the Borrower and any of its Subsidiaries party to an Asset Securitization may sell accounts and related general intangibles, chattel paper, instruments, security and collections with respect thereto pursuant to such Asset Securitization (after the execution thereof), so long as (x) each such sale is in an arm’s-length transaction and on terms consistent with prevailing market conditions for similar transactions at such time and (y) the aggregate Attributable Securitization Indebtedness shall not exceed $400,000,000 at any time outstanding;
(viii) each of the Borrower and any of its Subsidiaries may liquidate or financing otherwise dispose of receivablesCash Equivalents in the ordinary course of business;
(ix) each of the Borrower and any of its Subsidiaries may consummate an Acquisition, so long as no Default or Event of Default shall have occurred and be continuing at the time of the consummation of the proposed Acquisition or immediately after giving effect thereto (each such Acquisition, a “Permitted Acquisition”);
(fx) each of the Borrower and any of its Subsidiaries may transfer and dispose of inventory, raw materials, equipment, Real Property and other tangible assets in exchange for consideration comprised of inventory, raw materials, supplies, used or surplus equipment, Real Property and other tangible assets or some combination thereof, in each case in the ordinary course of business, so long as (x) no Default or Event of Default then exists or would result therefrom and (y) the book value of such assets at the time of the consummation of such sale, when added to the book value of all assets of the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating previously sold pursuant to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f8.2(x), hereafter “Permitted Technology Licenses”);does not exceed $250,000,000 at any time; and
(gxi) any Subsidiary each of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into and any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale convey raw materials, equipment, Real Property and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its other tangible assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used to acquire replacement raw materials, equipment, real property and other tangible assets within 90 270 days after receipt of such Net Sale Proceeds (and in the case of any contractual commitment to (i) repay Senior Secured Notes (2010so apply such Net Sale Proceeds entered into within such 270 day period, within 360 days after receipt of such Net Sale Proceeds); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 1 contract
Samples: Term Loan Agreement (Owens Corning)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Company will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by the Company and its Subsidiaries shall be made permitted to the extent permitted not in violation of Section 9.07;
(ii) each of the Company and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) each of the Company and its Subsidiaries may rent or lease Inventory to retail customers in the ordinary course of business; PROVIDED that:
(a) all such rental or lease arrangements are evidenced by Section 8.4a written, fully executed agreement by and between the Company or the applicable Subsidiary, as the case may be, and the Person to whom such Inventory is rented or leased (the "Rental Account Party");
(b) Investments may be made each such rental or lease arrangement provides for the rental or lease of such Inventory on market terms, consistent with industry standards (including, without limitation, purchase by the Rental Account Party of appropriate property, casualty and liability insurance with respect to the extent permitted by Section 8.7Inventory rented or leased);
(c) such rental or lease arrangement, to the extent that same provides the Rental Account Party with the option to purchase the Inventory which is the subject of such rental or lease arrangement, shall provide for a purchase price which is no less than a price reasonably determined by the Company or the applicable Subsidiary, as the case may be, at the origination of such agreement to be consistent with industry standards and then prevailing market conditions;
(d) the agreement evidencing each such rental or lease agreement shall, if required by the Collateral Agent, be conspicuously marked with a legend in form and substance satisfactory to the Collateral Agent, to the effect that such agreement is subject to the Lien of the Collateral Agent pursuant to the respective Security Documents;
(e) such rental or lease arrangement shall comply in all material respects with all applicable laws and regulations, including, without limitation, any applicable usury law; and
(f) in respect of each such rental or lease arrangement, the Company or the applicable Subsidiary, as the case may be, shall file and maintain any and all financing statements, notices to owner and other filings and notices which are necessary or appropriate to insure and protect all of the Company's or such Subsidiary's right, title and interest in and to such Inventory against the creditors of and other claimants against the Rental Account Party and any other Person;
(iv) each of the Borrower Company and its Subsidiaries may lease sell or assign to Associates Commercial Corporation, The CIT Group or any other Person reasonably acceptable to the Agent installment sales contracts originated by the Company or any such Subsidiary in connection with the sale of Inventory of such Person in the ordinary course of business, PROVIDED that the Company or any such Subsidiary shall receive cash proceeds and/or trade-ins therefor equal to no less than the entire outstanding principal balance of such contract as of the date of such sale, together with all accrued and unpaid interest thereon and all other sums then due and owing the Company or the applicable Subsidiary thereunder, and each such sale and assignment shall be without recourse to, or representation or warranty by, the Company or any such Subsidiary;
(as lessorv) real each of the Company and its Subsidiaries may sell obsolete or personal property worn-out assets in the ordinary course of business other than to a Receivables Subsidiaryand fixtures which are no longer useful in the business of the Company or any of its Subsidiaries;
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk financing transaction;
(vii) each of the Company and its Subsidiaries may sell other assets (other than the capital stock of a Subsidiary Guarantor) so long as (i) no Default or no Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Company or financing the respective Subsidiary receives at least fair market value (as determined in good faith by the Company or such Subsidiary, as the case may be), (iii) the total consideration received by the Company or such Subsidiary is cash and is paid at the time of receivablesthe closing of such sale, (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 3.03(b) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (vii) shall not exceed $10,000,000 in any fiscal year of the Company;
(viii) Investments may be made to the extent permitted by Section 9.05;
(ix) each of the Company and its Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(iv));
(fx) the Borrower Company and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries may acquire all or substantially all of the Borrower assets of any Person (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that all or substantially all of the assets of a product line or division of any Person) or 100% of the capital stock of any Person (including by purchasing the remaining portion of the capital stock of any Person in which the Company or a Wholly-Owned Subsidiary or Subsidiaries thereof already has an ownership interest and as a result of which such Person shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be become a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower Company) (any such acquisition permitted by this clause (x), a "Permitted Acquisition"), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each of the representations and warranties contained in Section 7 shall be true and correct in all material respects both before and after giving effect to such Permitted Acquisition, (iii) any Liens or Indebtedness assumed, incurred or issued in connection with such Permitted Acquisition are otherwise permitted under Section 9.01 or 9.04, as the case may be, (iv) the only consideration paid by the Company or any of its Wholly-Owned Subsidiaries in connection with any Permitted Acquisition consists solely of cash, common stock of the Company and/or Qualified Preferred Stock of the Company, (v) at least 10 Business Days prior to the consummation of any Permitted Acquisition, the Company shall deliver to the Agent and each of the Lenders (x) notice of such Permitted Acquisition, which notice shall include (to the extent available) any historical and PRO FORMA financial statements and projections with respect to such Permitted Acquisition, a summary of the material terms and conditions of such Permitted Acquisition and any other than material information with respect to such Permitted Acquisition (Iincluding without limitation any offering memoranda or other similar material prepared in connection therewith), (y) a certificate of the Company's Chief Financial Officer certifying (and showing the calculations therefor in reasonable detail) that the Company would have been in compliance with the financial covenants set forth in Sections 9.08 and 9.09 for the Test Period then most recently ended prior to the date of the consummation of such Permitted Acquisition, in each case with such financial covenants to be determined on a PRO FORMA basis as if such Permitted Acquisition had been consummated on the first day of such Test Period (and assuming that any Indebtedness incurred, issued or assumed in connection therewith had been incurred, issued or assumed on the first day of, and had remained outstanding throughout, such Test Period) and (z) projections (in reasonable detail) prepared by a the Chief Financial Officer of the Company for the period from the Borrower date of the consummation of such Permitted Acquisition to the date which is one year thereafter calculated after giving effect to the respective Permitted Acquisition, demonstrating that the level of financial performance measured by the financial covenants set forth in Sections 9.08 and 9.09 shall be better than or equal to such level as would be required to provide that no Default or Event of Default will exist under such financial covenants, as compliance with such financial covenants will be required through the date which is one year from the date of the consummation of the respective Permitted Acquisition, it being understood, however, that with respect to each Permitted Acquisition, the Borrower's PRO FORMA and projected Leverage Ratio for the respective Test Period shall be at least .25 below the maximum permitted Leverage Ratio for such Test Period as set forth in Section 9.09, (vi) the aggregate consideration paid in connection with all Permitted Acquisitions effected after the Restatement Effective Date (including, without limitation, any earn-out, non-compete or deferred compensation arrangements (in each case as determined in good faith by the Company), the aggregate principal amount of any Indebtedness incurred, issued or assumed in connection therewith and the fair market value of any capital stock of the Company issued in connection therewith (as determined in good faith by the Company) does not exceed $100,000,000, PROVIDED, HOWEVER, until all outstanding loans under the Existing Term Loan Agreement have been repaid and same has been terminated, no more than $7,000,000 in the aggregate may be paid in connection with all such Permitted Acquisitions, (vii) the Total Unutilized Commitment immediately after giving effect to any Permitted Acquisition is at least $25,000,000, (viii) the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) would permit the Borrowers to incur at least $25,000,000 of additional Revolving Loans, (ix) any Person or assets so acquired are employed in a Domestic Subsidiary business permitted by Section 9.13, (x) the total consideration (calculated as described in clause (vi) above) in respect of all Permitted Acquisitions of any Persons or assets employed in a business principally located outside of the continental United States (excluding the purchase by the Company of the remaining ownership interest in Sullair Argentina not otherwise purchased pursuant to a Foreign Subsidiary or Section 9.05(xiii)) does not exceed $10,000,000 in the aggregate and (IIxi) to a Receivables Subsidiary)the extent that the total consideration of any individual Permitted Acquisition (calculated as described in clause (vi) above) exceeds $25,000,000, the Company shall (in addition to the requirements of clauses (i) through (x) above) deliver to the Agent and each of the Lenders (x) an appraisal of the Person or assets so acquired, (y) any information with respect to such Permitted Acquisition required to be delivered by the Company to the SEC and (z) any other information with respect to such Permitted Acquisition reasonably requested by the Agent;
(kxi) each of the Company and its Subsidiaries may grant leases or subleases to other Persons not materially interfering with the conduct of the business of the Company or any of its Subsidiaries;
(xii) any Subsidiary of the Borrower (other than a Receivables Subsidiary) Company may voluntarily liquidate, wind-up be merged or dissolveconsolidated with or into the Company so long as the Company is the surviving corporation of such merger or consolidation;
(lxiii) any Subsidiary of the Company may be merged or consolidated with or into any Subsidiary Guarantor so long as (i) the Borrower Subsidiary Guarantor is the surviving corporation of such merger or consolidation and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets (ii) in addition to the Issuerrequirements of preceding clause (i), (x) in each the case pursuant to of any such merger or consolidation involving a Wholly-Owned Subsidiary of the Receivables Documents under a Permitted Accounts Receivables Securitization;
Company, the Wholly-Owned Subsidiary is the surviving corporation of such merger or consolidation and (my) Foreign Subsidiaries in the case of any such merger or consolidation involving Neff Machinery or Neff Rental, Neff Machinery or Neff Rental, xx the case may enter into Foreign Factoring Transactionsbe, is the suxxxxing corporatiox xx such merger or consolidation; and
(nxiv) any Subsidiary of the Borrower and its Subsidiaries Company that is not a Subsidiary Guarantor may consummate be merged or consolidated with or into any other Subsidiary of the US Commodity Business Sale provided Company that is not a Subsidiary Guarantor so long as in the case of any such merger or consolidation involving a Wholly-Owned Subsidiary of the Company, the Wholly-Owned Subsidiary is the surviving corporation of such merger or consolidation. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of less than 75% all or substantially all of the Net Sale Proceeds therefrom are used within 90 days Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than to (i) repay Senior Secured Notes (2010the Company or a Subsidiary thereof); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment , such Collateral shall be sold free and clear of Term Loans pursuant the Liens created by the respective Security Documents and the Agent and the Collateral Agent shall be authorized to Section 4.3take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Neff Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower No Credit Agreement Party will, or will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger merger, consolidation or consolidationamalgamation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than the liquidation of Cash Equivalents in the ordinary course of business), with respect to or enter into any such transaction involving all sale-leaseback transactions, or substantially all purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, and intangible assets in the Borrower, enter into an agreement ordinary course of business) of any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may property or assets purchased with Capital Expenditures made by the Canadian Parent and its Subsidiaries (other than the Designated Special Purpose Entities) shall be made permitted to the extent permitted by such Capital Expenditures are not in violation of Section 8.49.07;
(bii) the Canadian Parent and each of its Subsidiaries (other than the Designated Special Purpose Entities) may (x) in the ordinary course of business, sell, lease or otherwise dispose of any property or assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) enter into transactions permitted under Section 9.01(v);
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) the Canadian Parent and each of the Borrower and its Subsidiaries (other than the Designated Special Purpose Entities) may lease (as lessorlessee) real or personal property in (so long as any such lease does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04);
(dv) each Subsidiary (other than the Designated Special Purpose Entities) of the Borrower and its Subsidiaries Canadian Parent may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and inventory in the ordinary course of business, Accounts Receivable arising ;
(vi) the Canadian Parent and its Wholly-Owned Subsidiaries (other than the Designated Special Purpose Entities) shall be permitted to make Permitted Acquisitions so long as same are effected in accordance with the ordinary course requirements of business Section 8.13;
(vii) the Canadian Parent and its Subsidiaries (other than the Designated Special Purpose Entities) may sell or otherwise dispose of (x) which are overdue, or any shares of the Equity Interests of any Unrestricted Subsidiaries owned by them and (y) which any Equity Interests of any Person that is not a Subsidiary of the Borrower Canadian Parent or such Subsidiary may reasonably determine are difficult which was acquired by the Canadian Parent or such Subsidiary pursuant to collect but only an Investment permitted by Sections 9.05(vii), (x) or (xi), so long as (A) no Default or Event of Default is in connection with existence at the compromise or collection thereof consistent with customary industry practice (and not as part time of any bulk the respective sale or financing of receivables)disposition or would exist immediately after giving effect thereto and (B) if any -92- such sale is an Asset Sale, the Net Sale Proceeds therefrom are applied to repay Loans as provided in Section 4.02(c) or reinvested in Additional Assets to the extent permitted by said Section;
(fviii) so long as no Specified Default or Event of Default exists at the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee time of the Administrative Agent without the consent respective transfer of the licensee and no such license shall assets or immediately after giving effect thereto, (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g1) any Wholly-Owned Foreign Subsidiary of the Borrower Canadian Parent (other than an Intercompany Finance Subsidiary) may merge or amalgamate with or into the Canadian Parent or any other Wholly-Owned Foreign Subsidiary of the Canadian Parent (other than an Intercompany Finance Subsidiary) (so long as (A) in the case of any such merger or amalgamation with or into the Canadian Parent, the Canadian Parent is the survivor of such merger, (B) in the case of any such merger involving a Receivables Qualified Canadian Obligor (other than the Canadian Parent), the survivor is a Qualified Canadian Obligor and (C) in the case of any other such merger or amalgamation involving a Subsidiary Guarantor, the survivor is a Subsidiary Guarantor), (2) any Wholly-Owned Subsidiary of the Canadian Parent (other than an Intercompany Finance Subsidiary) may be merged or consolidated (x) with or amalgamated into the Borrower (so long as the Borrower is the surviving entity, corporation of such merger) and (y3) with or into any one or more Wholly-Owned Subsidiaries Subsidiary of the Borrower Canadian Parent (other than an Unrestricted Intercompany Finance Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation ) may be merged or IRIC); provided, however, that amalgamated into any Wholly-Owned Subsidiary of the Canadian Parent which is a Qualified Obligor at such time (so long as (A) the surviving company of such merger or amalgamation remains a Wholly-Owned Subsidiary of the Canadian Parent which is a Qualified Obligor and (B) in the case of any such merger or Subsidiaries amalgamation involving a Qualified U.S. Obligor, the surviving company of such merger is a Qualified U.S. Obligor);
(ix) sales and other transfers by (A) the sellers of Intercompany Receivables Facility Assets to any Intercompany Finance Subsidiary and purchases and acquisitions of Intercompany Receivables Facility Assets by any Intercompany Finance Subsidiary, (B) an existing Intercompany Finance Subsidiary of Intercompany Receivables Facility Assets to an Additional Intercompany Finance Subsidiary established in accordance with the definition thereof, in each case pursuant to an Intercompany Receivables Facility, shall be permitted and (C) with the surviving entity approval of the Agents, any Intercompany Finance Subsidiary may merge or (z) amalgamate with or into any Person in connection with another Intercompany Finance Subsidiary so long as (I) the consummation surviving Intercompany Finance Subsidiary is a Wholly-Owned Subsidiary of an Acquisition; provided, however, that the Canadian Parent (but not of the Borrower) and (II) the corporate structure of the Canadian Parent and its Subsidiaries after giving effect to such merger or consolidation amalgamation is satisfactory to the surviving Subsidiary shall be a Wholly-Owned SubsidiaryAgents;
(hx) so long as no Specified Default or Event of Default exists at the time of the respective transfer of assets or immediately after giving effect thereto, (1) the Canadian Parent and any of its Subsidiaries may transfer assets to any Qualified Obligor (other than the Finance Corp.), (2) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its Subsidiaries which is a Qualified Obligor may transfer assets to any other Qualified Obligor (other than Finance Corp.), (3) any Non-U.S./Canadian Subsidiary (other than an Intercompany Finance Subsidiary) may transfer assets to any other Non- U.S./Canadian Subsidiary (other than an Intercompany Finance Subsidiary), (4) Qualified Obligors (other than Finance Corp.) may transfer equipment to Non-U.S./Canadian Subsidiaries (other than an Intercompany Finance Subsidiary) to the extent that such assets are determined by management of the Canadian Parent to be redundant, as a result of the Transaction or any Permitted Acquisition, of those assets otherwise owned by such Qualified Obligors and (5) Qualified Obligors (other than the Borrower and Finance Corp.) may transfer assets (including but not Equity Interests in connection with Sale and Leaseback Transactions any Person) in transfers not involving Indebtednessotherwise permitted pursuant to this Section 9.02 to Non-U.S./Canadian Subsidiaries (other than an Intercompany Receivables Subsidiaries), Capitalized Lease Obligations or an Operating Financing Lease) if so long as the aggregate net book value (at the time of disposition thereof) Fair Market Value of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year transferred pursuant to this clause (i5) plus after the Effective Date, when added to the aggregate net book value principal amount of all loans and advances made pursuant to Section 9.05(v)(B)(z) (determined without regard to any write-downs or write-offs thereof, but net of any cash repayments of principal received in respect thereof) after the assets then proposed Effective Date and the aggregate amount of cash equity contributions made pursuant to be disposed Section 9.05(xiv)(z) (net of any cash repayments received in respect thereof) after the Effective Date, does not exceed 12.5% $200,000,000;
(xi) the Subsidiaries of the Consolidated Net Tangible Assets Canadian Parent (other than the Borrower Designated Special Purpose Entities) may sell or otherwise transfer and its Subsidiaries rent or lease back property so long as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with the Fair Market Value of all such property so sold or transferred and rented or leased back pursuant to this clause (xi) in any disposition fiscal year of assets or within 360 days of receipt of proceeds in connection with such dispositionthe Canadian Parent does not exceed $25,000,000, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower consideration received by the Canadian Parent or such Subsidiary has complied with the provisions of Section 7.11 with respect its Subsidiaries from each sale or transfer pursuant to such property, then such dispositions this clause (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other propertyxi) shall be disregarded for purposes in the form of calculations cash and (C) in the case of any Asset Sale pursuant to this Section 8.3(i) clause (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sellxi), lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days applied to repay Loans as provided in Section 4.02(c) or reinvested in Additional Assets to the extent permitted by said Section;
(ixii) the Canadian Parent and its Subsidiaries (other than the Designated Special Purpose Entities) may enter into agreements to effect acquisitions and dispositions of Equity Interests or assets so long as the respective transaction is permitted pursuant to the provisions of this Section 9.02; provided that the Canadian Parent and its Subsidiaries (other than the Designated Special Purpose Entities) may enter into agreements to effect acquisitions and dispositions of Equity Interests or assets in transactions not permitted by the provisions of this Section 9.02 at the time the respective agreement is entered into, so long as in the case of each such agreement, such agreement shall be expressly conditioned upon obtaining the requisite consent of the Required Lenders under this Agreement as a condition precedent to the consummation of the respective transaction and, if for any reason the transaction is not consummated because of a failure to obtain such consent, the aggregate liability of the Canadian Parent and its Subsidiaries under any such agreement shall not exceed $25,000,000;
(xiii) the Canadian Parent and its Subsidiaries (other than the Designated Special Purpose Entities) may sell or otherwise dispose of additional assets (excluding, assets sold, transferred or disposed of pursuant to an Intercompany Receivables Facility), so long as (A) no Default or Event of Default is in existence at the time of the respective sale or disposition or would exist immediately after giving effect thereto, (B) the aggregate Net Sale Proceeds from all assets subject to sales or dispositions under this clause (xiii) in any fiscal year of the Canadian Parent shall not exceed $50,000,000, (C) each such sale or disposition shall be for Fair Market Value (other than with respect to sales or dispositions in an aggregate amount not to exceed $2,000,000 in any fiscal year of the Canadian Parent) and either (x) at least 75% of the aggregate consideration therefor shall be in the form of cash or (y) to the extent that property other than cash accounts for more than 25% of the aggregate consideration therefor, the aggregate Fair Market Value of such property to the extent in excess of 25% of the aggregate consideration therefrom shall be deemed to constitute an Investment under Section 9.05(vii), and shall only be permitted if same can be (and are) justified as an Investment pursuant to said Section 9.05(vii), and (D) the Net Sale Proceeds from each Asset Sale effected pursuant to this Section 9.02(xiii) are applied to repay Senior Secured Notes Loans as provided in Section 4.02(c) or reinvested in Additional Assets to the extent permitted by said Section;
(2010xiv) the Transaction shall be permitted;
(xv) the Peak Technologies Sale shall be permitted, so long as (x) no Default or Event of Default then exists or would result therefrom, (y) the Canadian Parent and/or its Subsidiary receives at least Fair Market Value in consideration for such sale and (z) the aggregate amount of Net Sale Proceeds, when added to all Net Sale Proceeds received from sales and dispositions of assets pursuant to Sections 9.02(xvi) and 9.02(xvii) after the Effective Date, to the extent in excess of $50,000,000, are applied and/or reinvested as (and to the extent required by) Section 4.02(c); ;
(iixvi) repay Senior Notes the Canadian Parent and its Subsidiaries may sell or otherwise dispose of additional assets (2012but not Equity Interests in any Person) determined by the management of the Canadian Parent in good faith to be redundant, as a result of the Transaction or any Permitted Acquisition, of those assets theretofore owned by the Canadian Parent and its Subsidiaries, so long as (x) no Default or Event of Default then exists or would exist after giving effect thereto, (y) each such sale or disposition is at Fair Market Value and (z) the aggregate amount of Net Sale Proceeds received by the Canadian Parent and its Subsidiaries from any such sale or disposition, when added to the Net Sale Proceeds received from sales or dispositions of assets pursuant to Sections 9.02(xv) and 9.02(xvii) after the Effective Date, to the extent in excess of $50,000,000, are applied and/or reinvested as (and to the extent required by) Section 4.02(c); ;
(iiixvii) repay Receivables Facility Attributed Indebtedness and/or the Canadian Parent and its Subsidiaries (ivother than the Designated Special Purpose Entities) make may sell or otherwise dispose of assets located in a voluntary prepayment Non-Qualified Jurisdiction, or comprising all the Equity Interests owned by the Canadian Parent and its Subsidiaries in any Person (excluding any Designated Special Purpose Entity) organized under the laws of Term Loans a Non-Qualified Jurisdiction and substantially all of whose assets and business and is located and conducted in one or more Non-Qualified Jurisdiction, where the management of the Canadian Parent has determined in good faith that it would be in the interests of the Canadian Parent and its Subsidiaries to exit (and no longer conduct business in) such Non-Qualified Jurisdiction, so long as (w) such assets are sold prior to the date occurring 18 months after the Initial Borrowing Date, (x) no Default or Event of Default then exists or would exist after giving effect thereto, (y) each such sale or disposition is at Fair Market Value and (z) the aggregate amount of Net Sale Proceeds received by the Canadian Parent and its Subsidiaries from any such sale or disposition, when added to the Net Sale Proceeds received from sales or dispositions of assets pursuant to Section 4.39.02(xv) and 9.02(xvi) after the Effective Date, to the extent in excess of $50,000,000, are applied and/or reinvested as (and to the extent required by) Section 4.02(c);
(xviii) the Canadian Parent and its Subsidiaries (other than the Designated Special Purpose Entities) may sell or otherwise dispose of additional assets (excluding assets sold, transferred or disposed of pursuant to an Intercompany Receivables Facility) pursuant to one or more Asset Sales, so long as (A) no Default or Event of Default is in existence at the time of the respective sale or disposition or would exist immediately after giving effect thereto, (B) the aggregate Fair Market Value of all assets subject to sales or dispositions under this clause (xviii) after the Effective Date shall not exceed $150,000,000, (C) each such sale or disposition shall be for Fair Market Value and at least 75% of the aggregate consideration for each such sale or disposition shall be in the form of cash and (D) the Net Sale Proceeds from each Asset Sale effected pursuant to this Section 9.02(xviii) are applied to repay loans as provided in Section 4.02(c) or reinvested in Additional Assets to the extent permitted by said Section; and
(xix) so long as no Default or Event of Default then exists or would result therefrom, inactive Subsidiaries of the Parent (excluding in any event the Borrower, Moore North America, Wallace and Finance Corp.) may be liquidaxxx xr dissolved from xxxx xo time, so long as (x) the Canadian Parent determines that such liquidation is not adverse to the interests of the Lenders and (y) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents shall remain in full force and effect (to at least the same extent as in effect immediately prior to such dissolution or liquidation). Notwithstanding anything to the contrary contained above in this Section 9.02, in no event shall the Canadian Parent or any of its Subsidiaries enter into any sale-leaseback transactions, except in accordance with Section 9.02(xi) above. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to the Canadian Parent or any of its Subsidiaries) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall (and are hereby authorized to) take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings ------------------------------------------------------ will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(i) Capital Expenditures (including payments in respect of Capitalized Lease Obligations) by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Sections 8.01(vi)(A) and 8.07;
(ii) Holdings and its Subsidiaries may sell, exchange or otherwise dispose of equipment and materials in the ordinary course of business;
(iii) Holdings and its Subsidiaries may make sales or other dispositions of inventory in the ordinary course of business and consistent with past practice;
(iv) Holdings and its Subsidiaries may grant leases or sub-leases to merchants, vendors, other providers of services and other Persons in the ordinary course of business so long as such lease or sub-lease does not materially interfere with the conduct of the business of Holdings or any of its Subsidiaries;
(v) the Borrower and its Subsidiaries may enter into Operating Leases with an Approved Lessee and the Non-Controlled Entities may enter into FF&E Leases with an Approved Lessee;
(vi) the Borrower and the Subsidiary Guarantors may sell or otherwise transfer property to one another;
(vii) Holdings and its Subsidiaries may sell, transfer or otherwise dispose of assets (other than the capital stock or other equity interests in the Borrower or in any Subsidiary Guarantor) with a fair market value (as determined in good faith by Holdings or such Subsidiary, as the case may be) not in excess of $10,000,000 in any transaction or series of related transactions;
(viii) the Borrower and its Subsidiaries may sell inventory, fixed asset supplies and working capital receivables relating to a Hotel Property to the Approved Lessee under the Operating Lease relating to such Hotel Property for a purchase price equal to no less than the fair market value thereof (with a purchase price equal to the book value thereof being deemed to meet this standard) (and the consideration therefor shall be in the form of cash and/or a promissory note), so long as the Borrower or the related Subsidiary is granted a Lien upon such inventory, fixed asset supplies and working capital receivables pursuant to the related Operating Lease as security for the obligations of the Approved Lessee thereunder;
(ix) Holdings and its Subsidiaries may sell Hotel Properties and other assets (including the capital stock or other equity interests (including by way of merger) of the Person or Persons owning such Hotel Properties or other assets, but specifically excluding the capital stock of the Borrower) so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is at fair market value (as determined in good faith by Holdings or such Subsidiary, as the case may be), (iii) the consideration received by Holdings or such Subsidiary is either (a) Restricted Payments at least 75% cash and/or Cash Equivalents and is received at the time of the consummation of such sale, and with the balance of such con- sideration to be in the form of promissory notes, real estate assets (including related FF&E) and/or equity interests of Persons owning real estate assets, or (b) a combination of cash, Cash Equivalents and/or Permitted Like-Kind Exchange Property so long as the aggregate fair market value of all assets sold in exchange for Permitted Like-Kind Exchange Properties shall not exceed $500,000,000 in any fiscal year of Holdings; provided, however, that an Asset Sale (A) to either a non-Wholly Owned -------- ------- Subsidiary of the Borrower or to an Unconsolidated Entity in which the Borrower (directly or indirectly) owns an equity interest may be made for less than 75% cash and/or Cash Equivalents or (B) involving the sale of less than all of the stock or other equity interest of a Subsidiary Guarantor may be made (in either case) so long as the aggregate amount of all non-cash and/or non-Cash Equivalent consideration received in respect of all such Asset Sales (which are made for less than 75% cash and/or Cash Equivalents), when added to the extent permitted by aggregate amount of all non-cash Permitted Designated Investments made pursuant to Section 8.48.05(xii), does not exceed $300,000,000;
(x) from and after January 1, 2001, the Crestline Exchanges shall be permitted so long as (i) no Specified Default or Event of Default then exists or would result therefrom, (ii) the Crestline Exchanges are at fair market value (as determined in good faith by the Borrower or the applicable Subsidiary, as the case may be), and (iii) based on calculations made by Holdings and/or the Borrower on a Pro Forma Basis after giving effect to each such Crestline Exchange (or all such Crestline Exchanges occurring contemporaneously) and as if such Crestline Exchange (and/or Crestline Exchanges, as the case may be) had occurred on the first day of the respective Calculation Period, no Default or Event of Default will exist in respect of, or would have existed during the Test Period last reported (or required to be reported pursuant to Section 7.01(a) or (b), as the case may be) prior to the date of the respective Crestline Exchange (and/or Crestline Exchanges, as the case may be) in respect of, the financial covenants contained in Sections 8.08 through 8.12, inclusive;
(xi) the Borrower and its Subsidiaries may sell the FF&E at a Hotel Property to a Non-Controlled Entity so long as (i) the Borrower shall have reasonably determined in good faith that each such sale is necessary in order to avoid the characterization for tax purposes of any portion of the rent payable under the related Operating Lease as rent not attributable to real property (allowing reasonable margins with respect to applicable limitations), (ii) such FF&E is leased by such Non-Controlled Entity to the Approved Lessee under the related Operating Lease pursuant to an FF&E lease containing market terms for similar FF&E and with provisions protecting the interests of the owner of the applicable Hotel Property in a form reasonably acceptable to the Administrative Agent, (iii) the related Approved Lessee shall have assigned its interest (as lessee) in such FF&E lease to the Borrower or its Subsidiary owning the related Hotel Property as security for such Approved Lessee's obligations under the Operating Lease and the Borrower or such Subsidiary (or any successor Approved Lessee of such Hotel Property) shall have the right to acquire the interests of the tenant under such FF&E lease (if it is then in effect) upon a termination of the related Operating Lease, (iv) the purchase price paid for such FF&E shall be equal to at least the fair market value of such FF&E (with a purchase price equal to the book value thereof being deemed to meet this standard) (and the consideration paid shall be in the form of cash and/or a promissory note), and (v) no more than $200,000,000 of such FF&E is sold in any fiscal year of the Borrower less the sum of (I) the aggregate amount of FF&E otherwise purchased by Non-Controlled Entities during such fiscal year from Persons other than the Borrower or a Subsidiary thereof for use at a Hotel Property of the Borrower or a Subsidiary thereof and (II) the aggregate amount of all Investments made pursuant to Section 8.05(xiii) during such fiscal year;
(xii) Investments may be made to the extent permitted by Section 8.78.05;
(cxiii) each of the Borrower Holdings and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation unless permitted by Section 8.01(iii), (vi) or (xiii));
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(exiv) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries may acquire Hotel Properties (or all of the Borrower capital stock or other equity interests of the Person or Persons owning such Hotel Properties (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRICincluding by way of merger); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
so long as (i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.no Specified
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease lease, assign or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (including Oil and Leaseback TransactionGas Properties) but excluding purchases or other acquisitions of Hydrocarbons and other inventory, materials and equipment in the ordinary course of business) of any Person, except that:
(a) Restricted Payments may Capital Expenditures shall be made to the extent permitted by Section 8.4permitted;
(b) Holdings and its Subsidiaries may sell Hydrocarbons and other inventory in the ordinary course of business;
(c) Holdings and its Subsidiaries may liquidate or otherwise dispose of obsolete, uneconomic or worn-out property in the ordinary course of business;
(d) (i) Investments may be made to the extent permitted by Section 8.78.05, (ii) Liens may be granted to the extent permitted by Section 8.01 and (iii) Dividends may be made to the extent permitted by Section 8.03;
(ce) Holdings and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of the Payer or of any other Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary (other than the Payer) are sold in accordance with this clause (e)), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm’s-length transaction and Holdings or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration received by Holdings or such Subsidiary consists of at least 90% cash and is paid at the time of the Borrower closing of such sale and (iv) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (e) shall not exceed $25,000,000 in any fiscal year of Holdings (for this purpose, using the Fair Market Value of property other than cash);
(f) [Reserved]
(g) Holdings and its Subsidiaries may dispose of Oil and Gas Properties and acquire Oil and Gas Properties in contemporaneous exchanges; provided that (i) such acquired Oil and Gas Properties have a comparable or higher value as reasonably determined by Holdings, (ii) the only consideration paid for such acquisition is the Oil and Gas Property disposed of in connection with such acquisition or other consideration independently permitted under any other clause of this Section 8.02 and (iii) if the Fair Market Value of the Oil and Gas Properties to be disposed exceeds $50,000,000, Holdings shall obtain a resolution of its Board of Directors approving such exchange and deliver such resolutions to the Payee;
(h) Holdings and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in the ordinary course of business other than Oil and Gas Properties, so long as any such lease or license does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 8.04(d);
(di) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower Holdings and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fj) the Borrower Holdings and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent business of Holdings or any assignee of the Administrative Agent without the consent of the licensee and its Subsidiaries, in each case so long as no such license shall (i) transfer ownership of such Technology to any other Person grant otherwise affects the Collateral Agent’s security interest in the asset or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)property subject thereto;
(gk) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower Holdings and its Subsidiaries may sellconvey, transfer sell or otherwise dispose transfer all or any part of its business, properties and assets to Holdings or any asset in connection with any Sale and Leaseback Transaction involving IndebtednessSubsidiary of Holdings, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
so long as (i) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken and (ii) any Fiscal Yearsuch business, the Borrower property and assets conveyed, sold or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year otherwise transferred pursuant to this clause (ik) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets an Endeavour Party are conveyed, sold or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal otherwise transferred to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 another Endeavour Party and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such propertya Qualified Endeavour Party are conveyed, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer sold or otherwise dispose of any or all of its assets transferred to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolveanother Qualified Endeavour Party;
(l) the Borrower Holdings and its Subsidiaries maymay merge or consolidate with and into, directly or indirectlybe dissolved or liquidated into, sellHoldings or any other Subsidiary of Holdings, contribute so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving a Endeavour Party, a Endeavour Party is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Qualified Endeavour Party, a Qualified Endeavour Party is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (iii) in the case of any such merger, consolidation, dissolution or liquidation involving the Payer, the Payer is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets (iv) any security interests granted to the Issuer, in each case Collateral Agent for the benefit of the Secured Creditors pursuant to the Receivables Security Documents under a Permitted Accounts Receivables Securitizationin the assets of Holdings or such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(m) Foreign each of Holdings and its Subsidiaries may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business, in each case for cash at Fair Market Value;
(n) Holding and its Subsidiaries may make Permitted Business Investments and consummate Permitted Acquisitions pursuant to this clause (n) so long as the sum of the aggregate amount paid in respect of such Permitted Business Investments and the Aggregate Consideration paid in respect of Permitted Acquisitions, in each case made pursuant to this clause (n), does not exceed $50,000,000;
(o) [Reserved];
(p) Holdings and its Subsidiaries may make Permitted Business Investments and consummate Permitted Acquisitions pursuant to this clause (p) with net proceeds from Asset Sales made in accordance with Section 8.02(e);
(q) Holdings and its Subsidiaries may enter into Foreign Factoring Transactionscontractual joint venture arrangements with third parties pursuant to Oil and Gas Contracts; provided that such arrangements do not result in, or constitute the formation of, a Business in which Holdings or any of its Subsidiaries acquire Equity Interests not otherwise permitted by Section 8.05; and
(nr) the Borrower Holdings and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% dispose of Hydrocarbon Interests in exchange for a commitment of the Net Sale Proceeds therefrom are used within 90 days transferee to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make bear a voluntary prepayment disproportionate share of Term Loans pursuant the costs attributable to the Oil and Gas Properties to which such Hydrocarbon Interests relate. For the avoidance of doubt, Holdings’ and its Subsidiaries’ use of cash and Cash Equivalents to acquire assets in accordance with this Section 4.38.02 shall not constitute a conveyance, sale, lease or other disposition of property or assets that is subject to the restrictions set forth in this Section 8.02.
Appears in 1 contract
Samples: Reimbursement Agreement (Endeavour International Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease, charter or otherwise dispose of all or any part of its property or assets, or any of the Collateral or enter into any sale-leaseback transactions, except that:
(i) The Borrower and each of its Subsidiaries may sell, lease or otherwise dispose of any Mortgaged Vessel, provided that (A) such sale is made at fair market value (as determined in accordance with the Appraisals most recently delivered to the Administrative Agent (or obtained by the Administrative Agent) pursuant to Section 9.01(h) or delivered at the time of its properties or assets such sale to the Administrative Agent by the Borrower), (or, with respect to any such transaction involving all or substantially all B) 100% of the assets consideration in respect of such sale shall consist of cash or cash equivalents received by the Borrower or the respective Guarantor which owned such Mortgaged Vessel, on the date of consummation of such sale, (C) the Total Commitment shall be reduced at the time of such sale to the extent required pursuant to Section 4.03, and any prepayments of the Loans required pursuant to Section 4.02(a) as a consequence of such reduction shall have been made, and (D) the Borrower shall have delivered to the Administrative Agent an officer’s certificate, certified by the senior financial officer of the Borrower, enter into an agreement demonstrating pro forma compliance (giving effect to do any such Collateral Disposition and, in the case of calculations involving the foregoing at any future time without Appraised Value of Mortgaged Vessels, using valuations consistent with the Appraisals most recently delivered to the Administrative Agent (or obtained by the Administrative Agent’s prior written consent unless ) pursuant to Section 9.01(h) with each of the effectiveness covenants set forth in Sections 10.08 through 10.10, inclusive, for the most recently ended Test Period (or at the time of such agreement is conditional upon sale, as applicable) and projected compliance with such covenants for the consent one year period following such Collateral Disposition, in each case setting forth the calculations required to make such determination in reasonable detail;
(ii) (x) Investments by the Borrower and its Subsidiaries shall be permitted in accordance with Section 10.05 and (y) Capital Expenditures by the Subsidiaries of the Administrative AgentBorrower shall be permitted to the extent not in violation of Section 10.07;
(iii) the Subsidiaries of the Borrower may sell any asset, including vessels (and any related equipment and spare parts), provided that (x) no Default or enter into any Sale Event of Default is then in existence or would result from each such sale, (y) each such sale is made at least at fair market value (as determined in good faith by the chief executive officer or the chief financial officer of the Borrower) and Leaseback Transaction(z) other than in the case of transfers to joint ventures for purposes of employment of vessels in Mexico or Brazil, except that:
75% of the consideration in respect of each such sale shall consist of cash or Cash Equivalents received by the respective Subsidiary of the Borrower which owned such vessel on the date of consummation of each such sale, provided that for purposes of the 75% cash or Cash Equivalent consideration requirement in the foregoing clause (z), (a) Restricted Payments the amount of any Indebtedness of the Borrower or any Subsidiary (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets and (b) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such sale transfer or disposition shall be deemed to be cash;
(iv) any Subsidiary of the Borrower may be made lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 8.410.04(iv));
(bv) Investments may be made to the extent permitted by Section 8.7;
(c) each any Subsidiary of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary;
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable overdue accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablestransaction);
(fvi) the Borrower and or any Subsidiary may sell or otherwise transfer all or any part of its Subsidiaries may license its patentsbusiness, trade secrets, know-how and other intellectual property relating properties or assets to the manufacture Borrower or any Guarantor, in each case so long as all actions necessary or desirable to preserve, protect and maintain the security interest and Lien of chemical products and by-products (the “Technology”) provided that Collateral Agent in any Collateral involved in any such license shall be assignable transaction are taken to the Administrative Agent or any assignee reasonable satisfaction of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Collateral Agent;
(gvii) any Subsidiary of the Borrower (may merge with and into, or be dissolved or liquidated into, the Borrower, any Guarantor or any other than a Receivables Subsidiary) may be merged or consolidated (x) with or into Subsidiary of the Borrower Borrower, so long as (w) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving entitycorporation of any such merger, dissolution or liquidation, (x) except as provided in preceding clause (w), in the cases of any such merger, dissolution or liquidation involving a Guarantor, a Guarantor is the surviving corporation of any such merger, dissolution or liquidation, (y) with in the case of any such merger, dissolution or into any one or more Wholly-Owned liquidation involving Subsidiaries of the Borrower (other than an Unrestricted Subsidiarythat are not Credit Parties, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be of the Borrower is the surviving entity corporation of any such merger, dissolution or liquidation, and (z) with or into any Person in connection with all cases, the consummation security interests granted to the Collateral Agent for the benefit of an Acquisition; provided, however, that after giving the Secured Creditors pursuant to the Security Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger merger, dissolution or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiaryliquidation);
(hviii) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sellenter into demise, leasebareboat, transfer time, voyage and other charter or otherwise dispose of lease arrangements pursuant to which any such Subsidiary charters or all of its assets leases out a vessel to the Borrower or any other Wholly-Owned another Subsidiary of the Borrower or to a third Person, in each case so long as (other w) such arrangements are entered into in the ordinary course of business, (x) such arrangements do not materially impair the value of the vessel or vessels subject to such arrangements, (y) the tenor of any bareboat charter arrangement is less than three years unless otherwise consented to by the Administrative Agent (Isuch consent not to be unreasonably withheld) from and (z) for any charter arrangement with a term of twelve (12) months or greater, including any extension option, the Borrower or a Domestic Subsidiary of the Borrower, where applicable, execute and deliver an Assignment of Charters and, to the extent required, the Borrower shall use its commercially reasonable efforts to cause the relevant counterparty to the charter or other similar contract to execute and deliver a Foreign Subsidiary or (II) to a Receivables Subsidiary)consent thereto;
(kix) any Foreign Subsidiary of the Borrower that is not a Credit Party may sell or otherwise transfer all or any part of its business, properties or assets to any Wholly-Owned Foreign Subsidiary of the Borrower;
(x) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, windsell obsolete or worn-up out equipment or dissolvematerials in the ordinary course of business;
(lxi) any Subsidiary of the Borrower may enter into sale-leaseback transactions provided that the aggregate remaining present value outstanding under the leases relating to such sale-leaseback transactions entered into pursuant to this clause (x) does not exceed at any one time outstanding $4,000,000; and
(xii) sales, transfers, leases or other dispositions of assets by each Credit Party not otherwise permitted by this Section 10.02; provided that the aggregate gross proceeds of any or alls assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (xi) shall not exceed during any fiscal year $5,000,000. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02, such Collateral (unless sold to either Borrower or a Subsidiary of the Borrower) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Notwithstanding anything to the contrary contained above in this Section 10.02, in no event shall the Borrower of any of its Subsidiaries sell, lease or otherwise dispose of assets otherwise permitted under this Section 10.02 that, in the aggregate, constitute all or any substantial part of the assets of the Borrower and its Subsidiaries maytaken as a whole, directly or indirectlyprovided that this sentence shall not apply to sales, sell, contribute leases and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case dispositions otherwise permitted pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
Sections 10.02(v), (mvi) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
and (n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010viii); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries Company to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent (unless the effectiveness of such agreement relates to an action otherwise permitted by this Section 10.2, or to the extent that the respective action is conditional upon not otherwise permitted by this Section 10.2 (and the Loans will not be repaid in full, and all Commitments terminated, at the time of the consummation of the respective action), such agreement expressly provides that the consent of the Administrative Agentrequisite percentage of Lenders hereunder is required to be obtained in connection therewith), or enter into any Sale and Leaseback Transaction), except that:
(a) Restricted Payments Capital Expenditures by the Companies shall be permitted to the extent not in violation of Section 10.7;
(b) each of the Companies may make sales of inventory and license intellectual property in the ordinary course of business;
(c) each of the Companies may sell obsolete, uneconomic or worn-out equipment or materials in the ordinary course of business;
(d) Permitted Acquisitions may be made to the extent permitted by Section 8.49.15;
(be) each of the Companies may sell other assets (other than the capital stock of any Subsidiary Guarantor), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (iii) the total consideration received by the Borrower or such Subsidiary is at least 75% cash and is paid at the time of the closing of such sale, (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.2(c) and (v) the aggregate amount of the proceeds received from all assets sold pursuant to this Subsection (e) shall not exceed $5,000,000 in any fiscal year of the Borrower;
(f) Investments may be made to the extent permitted by Section 8.7;10.5; infoUSA Amended and Restated Credit Agreement
(cg) each of the Borrower and its Subsidiaries Companies may lease (as lessorlessee) real or personal property in (so long as any such lease does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.4(d));
(dh) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries Companies may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fi) each of the Companies may grant leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)its Subsidiaries;
(gj) any Subsidiary of the Borrower (other than a Receivables Subsidiaryi) may be merged or consolidated (x) with or into the Borrower or liquidated so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries corporation of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all receives the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 upon such liquidation and (Bii) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or to any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);Guarantor; and
(k) any Subsidiary of the Borrower may be merged or consolidated with or into any other Subsidiary of the Borrower or liquidated so long as (i) in the case of any (A) such merger or consolidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger or consolidation or (B) such liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor receives the assets of such Subsidiary upon such liquidation and (ii) in the case of any (A) such merger or consolidation involving a Wholly-Owned Subsidiary of the Borrower, in addition to the requirements of preceding clause (i)(A), a Wholly-Owned Subsidiary is the surviving corporation of such merger or consolidation or (B) such liquidation, in addition to the requirements of preceding clause (i)(B), a Wholly-Owned Subsidiary receives the assets of such Subsidiary upon such liquidation. To the extent the Required Lenders waive the provisions of this Section 10.2 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.2 (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) to the Borrower or a Subsidiary thereof), such Collateral shall be sold free and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% clear of the Net Sale Proceeds therefrom are used within 90 days Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant take any actions deemed appropriate in order to Section 4.3effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Each of Holdings and each other Borrower will not, and will not permit any of its their respective Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (orother than sales of inventory in the ordinary course of business), with respect to or enter into any such transaction involving all sale-leaseback transactions, or substantially all purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the Borrower, enter into an agreement ordinary course of business) of any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments may Capital Expenditures by Holdings and its Subsidiaries shall be made permitted (other than Capital Expenditures consisting of the acquisition of an Acquired Entity or Business except to the extent permitted by Section 8.49.16 or 10.05);
(bii) Holdings and its Subsidiaries may (x) sell inventory in the ordinary course of business or (y) liquidate or otherwise dispose of obsolete, uneconomical, non-useful or worn-out property in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.710.05;
(civ) Holdings and its Subsidiaries may sell assets (other than (A) the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (iv) or (B) ABL Priority Collateral), so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm’s-length transaction and Holdings or the respective Subsidiary receives at least Fair Market Value, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(c) and (z) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iv) (excluding cash and non-cash proceeds received from the sale of real property located at Xxxxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx) shall not exceed $10,000,000 in any fiscal year of Holdings (for this purpose, using the Fair Market Value of property other than cash);
(v) each of the Borrower Holdings and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04(iv));
(dvi) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower Holdings and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fvii) the Borrower each of Holdings and its Subsidiaries may license grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of Holdings or any of its patentsSubsidiaries, trade secretsin each case so long as no such grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto;
(viii) transfers of assets among Holdings and its Subsidiaries shall be permitted, know-how and other intellectual property relating so long as (w) no Default or Event of Default then exists or would exist immediately after giving effect to the manufacture of chemical products and by-products respective transfer, (the “Technology”x) provided that such license Real Property shall not be assignable to the Administrative Agent or transferred by any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology Person which is a Foreign Credit Party to any other Person or (ii) require which is not a Foreign Credit Party, and any other transfer of assets from a Foreign Credit Party to an entity which is not a Foreign Credit Party shall only be permitted if in the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary ordinary course of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entitybusiness, (y) with or into any one or more Wholly-Owned Subsidiaries assets so transferred shall be subject to any security interests granted to the Collateral Agent for the benefit of the Borrower Secured Parties at least to the same extent as would have been required had the transferee originally owned such assets, and (z) the aggregate amount of all assets transferred by (A) any U.S. Credit Party to any Subsidiary of Holdings which is not a U.S. Credit Party, (B) any ABL Credit Party (other than any U.S. Credit Party) to any Subsidiary of Holdings which is not an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a ABL Credit Party and (C) any Foreign Credit Party (other than any ABL Credit Party) to any Wholly-Owned Subsidiary or Subsidiaries of Holdings which is not an Credit Party, shall be the surviving entity or (z) with or into any Person in connection with the consummation not exceed an aggregate amount of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder$5,000,000;
(i) in any Fiscal YearDomestic Subsidiary of Holdings may be merged, consolidated or liquidated with or into Holdings (so long as Holdings is the Borrower or any Subsidiary may dispose surviving Person of any such merger, consolidation or liquidation) or another U.S. Credit Party (so long as a U.S. Credit Party is the surviving Person of its assets any such merger, consolidation or liquidation), (including ii) any Foreign Credit Party may be merged (or amalgamated), consolidated or liquidated with or into any other Foreign Credit Party organized in connection the same jurisdiction, and (iii) any Foreign Subsidiary of Holdings (other than a Foreign Credit Party) may be merged (or amalgamated), consolidated or liquidated with Sale and Leaseback Transactions not involving Indebtednessor into any Wholly-Owned Foreign Subsidiary of Holdings (so long as, Capitalized Lease Obligations in the case of a merger, consolidation or an Operating Financing Lease) if liquidation, a Wholly-Owned Foreign Subsidiary is the aggregate net book value surviving Person of any such merger, consolidation or liquidation); provided that any such merger (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year or amalgamation), consolidation or liquidation shall only be permitted pursuant to this clause (ix), so long as (A) no Default or Event of Default then exists or would exist immediately after giving effect thereto, (B) any security interests granted to the Collateral Agent for the benefit of the Secured Parties in the assets (and Equity Interests) of any such Person subject to any such transaction shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger (or amalgamation), consolidation or liquidation), (C) if any Person subject to any such merger (or amalgamation), consolidation or liquidation is a Borrower, the surviving Person, in the case of a merger, consolidation or liquidation, also shall be a Borrower, and in the case of an amalgamation, the Person resulting from such amalgamation assumes all obligations of the predecessor Borrower and (D) if the Person to be merged (or amalgamated), consolidated or liquidated into or with another Person as contemplated above is party to the U.S. Guaranty or the Foreign Guaranty, in the case of a merger, consolidation or liquidation, the nature and scope of the obligations of such Person under such U.S. Guaranty or such Foreign Guaranty, as the case may be, are substantially identical to the nature and scope of the obligations of such other Person under such U.S. Guaranty or such Foreign Guaranty, as the case may be, and in the case of an amalgamation, the Person resulting from such amalgamation assumes all obligations of the predecessor Guarantor;
(x) sales, transfers and other dispositions of assets (other than ABL Priority Collateral) to the extent such assets are exchanged substantially simultaneously for similar replacement assets shall be permitted so long as (i) plus no Default or Event of Default then exists or would result therefrom, (ii) the Fair Market Value of the assets received in any such sale, transfer or other disposition is equal to or greater than the Fair Market Value of the assets exchanged therefor and (iii) after giving effect to each such sale, transfer or other disposition, the aggregate net book value Fair Value Market of all the assets then proposed to be sold, transferred or otherwise disposed of does in reliance upon this clause (x) shall not exceed 12.5% $10,000,000 in any fiscal year of Holdings;
(xi) Permitted Acquisitions may be consummated in accordance with the Consolidated Net Tangible Assets the Borrower requirements of Section 9.16;
(xii) leases, occupancy agreements or subleases, licenses and sublicenses of property or assets of Holdings and its Subsidiaries as in the ordinary course of business; provided that any such arrangement is not substantially the equivalent of a sale; provided further, that, in the case of any such arrangement relating to any Mortgaged Property, such arrangement (i) shall be subordinate in all respects to the Liens granted and evidenced by the Security Documents, (ii) shall not, individually or in the aggregate, interfere in any material respect with the ordinary conduct of the end business of Holdings and its Subsidiaries taken as a whole, (iii) shall require any such lease, occupancy agreements or subleases, licenses or sublicenses of any portion of any Mortgaged Property to provide pursuant to customary commercially reasonable arm’s length provisions that the tenant’s use of the immediately preceding Fiscal Quarter for which premises shall not violate any applicable zoning or other law relating to the Borrower has delivered financial statements as required by Section 7.1; provideduses thereof and Holdings and its Subsidiaries shall use commercially reasonable efforts to enforce same, howeverand (iv) such leases, that if (A) concurrently with occupancy agreements or subleases, licenses or sublicenses of any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to any Mortgaged Property shall not materially impair the net proceeds value of such disposition are used by the Borrower property subject thereto; and
(xiii) Holdings and its Subsidiaries may liquidate or a Subsidiary to acquire other property used or to be used otherwise dispose of Cash Equivalents in the business referred to ordinary course of business, in Section 8.9 and (B) each case for cash at Fair Market Value. To the Borrower or such Subsidiary has complied with extent the Required Lenders waive the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property 10.02 with respect to the acquisition sale of such other property;
(j) the Borrower any Collateral, or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower Collateral is sold as permitted by this Section 10.02 (other than (I) from the Borrower to Holdings or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiaryany of its Subsidiaries);
(k) any Subsidiary , such Collateral shall be sold free and clear of the Borrower Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Notwithstanding anything to the contrary contained above in this Section 10.02 or elsewhere in this Agreement, (a) at any time when an Event of Default has occurred and is continuing, no ABL Priority Collateral may be sold, transferred or otherwise disposed of by any ABL Credit Party (other than a Receivables Subsidiarysales of inventory in the ordinary course of business), and (b) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower Holdings and any of its Subsidiaries mayshall not be permitted to sell or transfer the Equity Interests of, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% all or substantially all of the Net Sale Proceeds therefrom are used within 90 days to assets of, any Borrower, unless (i) repay Senior all Secured Notes Obligations (2010); other than Unasserted Obligations or obligations arising out of such Borrower’s guaranty of all or any portion of the Secured Obligations) owing by such Borrower have been indefeasibly paid in full in cash (or, solely in the case of Secured Obligations (x) with respect to the Secured Hedging Agreements to the extent such Secured Obligations have not been indefeasibly paid in full in cash, if Holdings has certified that no payment default exists with respect to any Secured Hedging Agreements and (y) with respect to the Secured Cash Management Agreements to the extent such Secured Obligations have not been indefeasibly paid in full in cash, if Holdings has certified that no payment obligation is outstanding with respect to any Secured Cash Management Agreements) and (ii) repay Senior Notes if, after such sale or transfer, no other Borrower then exists in the ABL Jurisdiction of such Borrower, (2012x) the Stated Amount of all Letters of Credit issued on behalf of such Borrower have been reduced to zero (or, with respect to each outstanding Letter of Credit, the applicable Issuing Lender has entered into arrangements, including without limitation cash collateralization, satisfactory to it in its sole discretion to eliminate such Issuing Lender’s risk with respect to each applicable outstanding Letter of Credit); , and (iiiy) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment no further Borrowings or Letters of Term Loans pursuant to Section 4.3Credit shall be permitted by Holdings or any of its Subsidiaries in such ABL Jurisdiction.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Each Credit Party will not, and will not permit any of its their respective Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any Sale Leaseback, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials, equipment, goods and services in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments may Capital Expenditures by the Company and its Subsidiaries shall be made to the extent permitted by Section 8.4(other than Capital Expenditures constituting a Permitted Acquisition);
(b) the Company and its Subsidiaries may sell inventory in the ordinary course of business;
(c) the Company and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(d) Investments may be made to the extent permitted by Section 8.710.05;
(ce) the Company and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Borrower or any Subsidiary Guarantor, unless, in the case of a Borrower (other than the Company) or a Subsidiary Guarantor, all of the capital stock or other Equity Interests of such Borrower or Subsidiary Guarantor are sold in accordance with this clause (e)), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration received by the Company or such Subsidiary consists of at least 75% (or, in the case of ABL Priority Collateral, 100%) cash or Cash Equivalents and is paid at the time of the Borrower closing of such sale, (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 5.02(c) and (v) unless the Payment Conditions are satisfied both before and after giving effect to such sale, the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (e) shall not exceed $35,000,000 in any Fiscal Year; provided, however, notwithstanding the foregoing, in no event shall (i) the Equity Interests of the Company be sold pursuant to this clause (e), (ii) all or substantially all of the assets of the Company and its Subsidiaries (taken as a whole) be sold pursuant to this clause (e) or (iii) the Coffeyville Refinery or the Wynnewood Refinery be sold pursuant to this clause (e);
(f) the Company and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04(d));
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(eg) the Borrower Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiarytransaction;
(h) the Borrower Company and its Subsidiaries may sellgrant licenses, transfer sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Company or any of its Subsidiaries, in each case so long as no such grant otherwise dispose of any affects the Collateral Agent’s security interest in the asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunderproperty subject thereto;
(i) in any Fiscal Year, the Borrower Company or any Subsidiary of the Company may dispose of convey, sell or otherwise transfer all or any part of its business, properties and assets (including in connection with Sale and Leaseback Transactions not involving Indebtednessto any Qualified Credit Party, Capitalized Lease Obligations or an Operating Financing Lease) if so long as any security interests granted to the aggregate net book value (at Collateral Agent for the time benefit of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year Secured Parties pursuant to this clause (i) plus the aggregate net book value of all Security Documents in the assets then proposed so transferred shall remain in full force and effect and perfected (to be disposed of does not exceed 12.5% of at least the Consolidated Net Tangible Assets the Borrower and its Subsidiaries same extent as of the end of the in effect immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect prior to such property, then such dispositions (or, transfer) and all actions required to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertymaintain said perfected status have been taken;
(j) the Borrower or any Subsidiary of the Borrower Company may sellmerge or consolidate with and into, leaseor be dissolved or liquidated into, transfer or otherwise dispose any Qualified Credit Party (except that ABL Priority Collateral may only be transferred among Borrowers, so long as (i) in the case of any such merger, consolidation, dissolution or liquidation involving the Company, the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving another Borrower, such Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (iii) in all other cases, a Qualified Credit Party is the surviving or continuing corporation of its assets any such merger, consolidation, dissolution or liquidation, and (iv) any security interests granted to the Borrower or any other Wholly-Owned Subsidiary Collateral Agent for the benefit of the Borrower Secured Parties pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (other than (Ito at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) from the Borrower or a Domestic Subsidiary and all actions required to a Foreign Subsidiary or (II) to a Receivables Subsidiary)maintain said perfected status have been taken;
(k) any Subsidiary of the Borrower Company that is not a Credit Party may merge or consolidate with and into, or be dissolved or liquidated into, any other Subsidiary of the Company that is not a Credit Party, so long as (other than i) in the case of any such merger, consolidation, dissolution or liquidation involving a Receivables SubsidiaryWholly-Owned Subsidiary of the Company, a Wholly-Owned Subsidiary of the Company is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (ii) may voluntarily liquidateto the extent that the Collateral Agent has a pledge of the Equity Interests of either of the Subsidiaries subject to such transaction pursuant to the Pledge and Security Agreement, wind-up such pledge shall continue in the Equity Interests of the surviving or dissolvecontinuing entity of any such merger, consolidation, dissolution or liquidation and all actions required to maintain said pledge have been taken;
(l) Permitted Acquisitions may be consummated in accordance with the Borrower requirements of Section 9.13;
(m) the Credit Parties and their respective Subsidiaries may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business, in each case for cash at Fair Market Value;
(i) prior to the consummation of the MLP IPO, any Credit Party may from time to time sell common units or other Equity Interests which it owns in CVR Partners, LP and (ii) after the consummation of the MLP IPO, the Credit Parties and their respective Subsidiaries may from time to time sell common units or other Equity Interests which they own in the MLP;
(o) the Company and its Subsidiaries maymay engage in Sale Leasebacks (other than in respect of ABL Priority Collateral) so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such Sale Leaseback is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration received by the Company or such Subsidiary consists of at least 75% cash and is paid at the time of the closing of such Sale Leaseback and (iv) the aggregate amount the cash and non-cash proceeds received from all Sale Leasebacks pursuant to this clause (o) shall not exceed $20,000,000;
(p) prior to the consummation of the MLP IPO, any Credit Party may exchange the special units that it holds in CVR Partners, LP for common units and/or other Equity Interests in CVR Partners, LP, so long as no cash or other asset consideration is given in connection therewith; and
(q) The MLP may merge (such transaction, the “Credit Party Merger”) with any newly-organized direct or indirect Subsidiary of a Qualifying Owner that does not have any Subsidiaries other than the MLP and its Subsidiaries (the “Merger Subsidiary”); provided, that,
(i) the Merger Subsidiary does not have any material assets other than (x) Equity Interests in the MLP and (y) assets constituting the consideration payable in such merger to the holders of Equity Interests in the MLP (whether payable to such Persons (A) in accordance with the terms of the agreement pursuant to which such merger is to be effected, (B) as a result of the exercise by such Persons of their rights to appraisal in accordance with Section 262 of the Delaware General Corporation Law or any analogous law or (C) as otherwise required by law (the consideration described in this clause (y), collectively, the “Merger Consideration”);
(ii) the Merger Subsidiary does not have any Indebtedness or other liabilities (except as permitted in clause (i) above);
(iii) the MLP is the surviving entity of such merger; and
(iv) no Default or Event of Default has occurred and is continuing or would result therefrom. For avoidance of doubt, it is understood that (i) the obligations of the Merger Subsidiary or any Credit Party to pay Merger Consideration (the “Merger Consideration Obligations”) shall not constitute “Indebtedness” for any purpose of this Agreement, (ii) so long as all payments by the Merger Subsidiary and the Credit Parties in respect of Merger Consideration Obligations are funded by equity contributions to the Merger Subsidiary or the MLP by a Qualifying Owner prior to or simultaneous with the making of such payments (the “Merger Consideration Contributions”), neither the incurrence of such Merger Consideration Obligations nor the performance thereof by the Merger Subsidiary or any Credit Party shall constitute Investments or Dividends for any purpose of this Agreement, (iii) the Credit Party Merger shall not be prohibited under Section 10.06, and (iv) because (and so long as) Qualifying Owners will continue to hold, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less more than 7550% of the Net Sale Proceeds therefrom are used within 90 days aggregate outstanding common stock as a result of the Credit Party Merger, the completion of the Credit Party Merger shall not constitute a Change of Control. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (i) repay Senior Secured Notes other than to any Credit Party or a Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect and/or evidence the foregoing. Notwithstanding anything to the contrary contained above in this Section 10.02 or elsewhere in this Agreement, the Credit Parties and any of their respective Subsidiaries shall not be permitted to sell or transfer the Equity Interests of, or all or substantially all of the assets of, any Borrower to any Person (2010other than a Credit Party); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans , unless all Obligations owing by such Borrower have been paid in full in cash or such Obligations shall have been assumed by the other Borrowers pursuant to Section 4.3an agreement in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower VHS Holdco I will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionother assets in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments may Capital Expenditures (and expenditures excluded from the definition thereof pursuant to the proviso thereto) by the Borrower and its Subsidiaries shall be made permitted to the extent permitted by not in violation of Section 8.49.07;
(bii) VHS Holdco I and each of its Subsidiaries may in the ordinary course of business, sell or otherwise dispose of materials, equipment and other assets which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person’s business;
(iii) Investments may be made to the extent permitted by Section 8.79.05, Liens may exist to the extent permitted by Section 9.01 and Dividends may be made to the extent permitted by Section 9.03;
(civ) VHS Holdco I and each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than to (so long as any such lease does not create a Receivables SubsidiaryCapitalized Lease Obligation unless permitted by Section 9.04(iii));
(dv) VHS Holdco I and each of its Subsidiaries may purchase and sell inventory and supplies in the ordinary course of business;
(vi) VHS Holdco I and its Subsidiaries may liquidate Cash Equivalents in the ordinary course of business;
(vii) each of the Borrower and its Subsidiaries may make sales sell or transfers otherwise dispose of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than assets; provided
(1) each such sale or other disposition by a Credit Party to a Receivables Subsidiary;
Subsidiary thereof that is not a Credit Party shall be made in compliance with Section 9.06 (ewithout reliance on clause (ii) thereof), (2) the Borrower and its Subsidiaries or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may sell or discountbe), in each case without recourse and in (3) at least 75% of the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which total consideration received by the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection is cash or Cash Equivalents and is received substantially contemporaneously with the compromise or collection thereof consistent with customary industry practice (and not as part consummation of any bulk such sale or financing other disposition; provided that for purposes of receivables);
the foregoing requirement, Designated Non-cash Consideration of up to $50,000,000 in the aggregate for all such sales and dispositions at any time outstanding shall be deemed to be cash, (f4) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (vii) shall not exceed the greater of (x) $675,000,000 and (y) 25% of Total Assets of the Borrower and its Subsidiaries may license its patentsSubsidiaries, trade secrets(5) the Net Sale/Recovery Event Proceeds from all sales or dispositions pursuant to this clause (vii) are either applied as provided in Section 4.02(e) or, know-how and other intellectual property relating subject to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable limitations set forth therein, reinvested in assets to the Administrative Agent extent permitted by Section 4.02(e) and (6) in the case of any such sale or any assignee other disposition of less than all of the Administrative Agent without the consent Equity Interests of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated Borrower, if after giving effect thereto such Subsidiary (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Whollybecomes a Non-Owned Subsidiaries of the Borrower (other than an Unrestricted Guarantor Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries VHS Holdco I shall be the surviving entity or (z) in compliance with or into any Person in connection with the consummation of an Acquisition; provided, however, that Section 9.15 after giving effect to such merger sale or consolidation the surviving Subsidiary shall be other disposition or (y) becomes a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset Person in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, which the Borrower or any Subsidiary may dispose of any one of its assets (including in connection with Sale and Leaseback Transactions not involving IndebtednessSubsidiaries retains a non-controlling equity interest, Capitalized Lease Obligations or such retained equity interest shall be deemed to be an Operating Financing Lease) if the aggregate net book value (Investment made at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries such sale in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does a Person that is not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property9.05;
(jviii) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer acquire one or otherwise dispose of more Hospital Properties located in the United States and any or all of its assets Health Care Assets located in the United States which are complementary to the Borrower and its Subsidiaries’ businesses, or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower may acquire (other than including pursuant to a Receivables Subsidiarymerger or consolidation) may voluntarily liquidate, wind-up Equity Interests in any Person (which as a result of such acquisition becomes a Subsidiary of the Borrower) all or dissolve;
(l) substantially all of whose assets consist of one or more Hospital Properties located in the United States and/or any Health Care Assets located in the United States which are complementary to the Borrower and its Subsidiaries maySubsidiaries’ businesses (each such acquisition, directly a “Permitted Acquisition” and, collectively, the “Permitted Acquisitions”); provided that (x) no Event of Default then exists or indirectlywould exist immediately after giving effect thereto, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets (y) to the Issuerextent the purchase price for such Permitted Acquisition is $10,000,000 or more, in each case pursuant VHS Holdco I shall deliver to the Receivables Documents under Administrative Agent a Permitted Accounts Receivables SecuritizationAcquisition Compliance Certificate, no later than the date of the consummation of such Permitted Acquisition and (z) at the time of, and after giving effect to, each such Permitted Acquisition, VHS Holdco I and the Borrower shall be in compliance with Sections 9.08 and 9.09 on a Post-Test Period Pro Forma Basis and shall be in compliance with Section 9.15;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(ni) the Borrower and its Subsidiaries may consummate transfer assets to a Subsidiary Guarantor and any Subsidiary of VHS Holdco I may transfer assets to the US Commodity Business Sale provided that not less than 75% Borrower, (ii) Subsidiaries of the Net Sale Proceeds therefrom Borrower that are used within 90 days not Subsidiary Guarantors may transfer assets to other Subsidiaries of the Borrower that are not Subsidiary Guarantors, (iii) any Subsidiary that is a Non-Guarantor Subsidiary may merge or consolidate into or with any other Non-Guarantor Subsidiary, (iv) any Subsidiary of the Borrower may merge with and into any Subsidiary Guarantor so long as the respective Subsidiary Guarantor is the surviving entity of such merger, and (v) any Subsidiary of the Borrower may liquidate or dissolve its existence or change its form of existence if VHS Holdco I determines in good faith that such liquidation, dissolution or change is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(x) so long as no Default or Event of Default then exists or would exist immediately after giving effect thereto, the Borrower and the Subsidiary Guarantors may transfer assets to Non-Guarantor Subsidiaries;
(xi) the Borrower and its Subsidiaries may (i) lease real or personal property to physicians or other medical professionals in the ordinary course of business, and (ii) otherwise grant leases or subleases of real or personal property to other Persons not materially interfering with the conduct of the business of VHS Holdco I or any of its Subsidiaries;
(xii) the Borrower and its Subsidiaries may enter into short-term leases at any time with respect to (i) repay Senior Secured Notes (2010); equipment not being utilized by any Hospital Property at such time, so long as such equipment was not purchased by the Borrower or any of its Subsidiaries for the purpose of leasing such equipment, and (ii) repay Senior Notes durable medical equipment leased by the Borrower and its Subsidiaries to its patients;
(2012xiii) the Borrower and its Subsidiaries may enter into sale-leaseback transactions so long as (i) any such sale-leaseback transaction between a Credit Party and a Subsidiary thereof that is not a Credit Party shall be in compliance with Section 9.06 (without reliance on clause (ii) thereof); , (ii) the Borrower or the respective Subsidiary of the Borrower receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be) and (iii) repay Receivables Facility Attributed the Indebtedness and/or incurred by the Borrower or the respective Subsidiary is permitted under Section 9.04(iii);
(ivxiv) make a voluntary prepayment VHS Holdco I and its Subsidiaries may pre-pay rent under leases and may purchase pre-paid insurance and services, in each case in the ordinary course of Term Loans business;
(xv) so long as the aggregate fair market value of all Real Property disposed of pursuant to this clause (xv) does not, at the time of (and giving effect to) any such disposition, exceed 2% of the Total Assets of VHS Holdco I and its Subsidiaries, the Borrower and its Subsidiaries shall be permitted to make dispositions of substantially unimproved Real Property to, or ground lease unimproved Real Property to, other Persons for sale or lease consideration pursuant to overall arrangements deemed by management of the Borrower to be fair and reasonable, for the purpose of the respective transferee or lessee building on such Real Property (A) a medical office building, (B) a building to contain a healthcare business or (C) a parking garage to be used in connection with a medical office building or a building containing or to contain a healthcare business, and any such transaction may include, if a ground lease, a subordination of the fee ownership interest of the lessor to the lien of the lender for such Person (valued at the aggregate fair market value of the Real Property sold or leased);
(xvi) the Borrower and/or its Subsidiaries may, in the ordinary course of business and consistent with past practices prior to the Initial Borrowing Date, sell or otherwise transfer receivables owing to it to third parties for the purposes of collection of outstanding balances thereunder;
(xvii) the Borrower and its Subsidiaries may transfer parcels of Real Property which are not improved with any material building thereon to governmental authorities without consideration; and
(xviii) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any of its Subsidiaries in the ordinary course of business. To the extent any Collateral is sold or otherwise disposed of as permitted by this Section 4.39.02 (other than any sale or any disposition to the Borrower or any Subsidiary Guarantor), such Collateral shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent shall be authorized to (and at the request and the expense of the Borrower shall) take any actions deemed appropriate by the Collateral Agent in order to effect or evidence the foregoing. In addition, subject to continued compliance with Section 9.15, upon the occurrence of any sale of all or less than all of the Equity Interests of any Subsidiary Guarantor consummated in accordance with the provisions of Section 9.02(vii), upon the receipt by the Administrative Agent and the Collateral Agent of (i) a certificate of an Authorized Officer of VHS Holdco I certifying that (x) such Subsidiary is to be released from the Subsidiaries Guaranty and the Security Documents to which it is a party in accordance with the provisions hereof and thereof and (y) no Default or Event of Default exists at the time of, or would exist immediately after giving effect to, such release and (ii) evidence reasonably satisfactory to the Administrative Agent and the Collateral Agent that such Subsidiary has been (or will contemporaneously with the release described below, will be) released from its guarantee (if any) of any and all Specified Indebtedness, such Subsidiary shall be released from the Subsidiaries Guaranty and the Security Documents to which it is party, and the Administrative Agent and the Collateral Agent shall be authorized to (and at the request and expense of the Borrower shall) take any action deemed appropriate in order to effect or evidence the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials and equipment in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent (unless the effectiveness of such agreement relates to an action otherwise permitted by this Section 10.02, or to the extent that the respective action is conditional upon not otherwise permitted by this Section 10.02 (and the Loans will not be repaid in full, and all Commitments terminated, at the time of the consummation of the respective action), such agreement expressly provides that the consent of the Administrative Agentrequisite percentage of Lenders hereunder is required to be obtained in connection therewith), or enter into any Sale and Leaseback Transaction), except that:
(ai) Restricted Payments Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 10.07;
(ii) each of the Borrower and its Subsidiaries may make sales of inventory and license intellectual property in the ordinary course of business;
(iii) each of the Borrower and its Subsidiaries may sell obsolete, uneconomic or worn-out equipment or materials in the ordinary course of business;
(iv) Permitted Acquisitions may be made to the extent permitted by Section 8.49.15;
(bv) each of the Borrower and its Subsidiaries may sell other assets (other than the capital stock of any Subsidiary Guarantor), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the Borrower or the respective Subsidiary receives at least fair market value (as determined in good faith by the Borrower or such Subsidiary, as the case may be), (x) the total consideration received by the Borrower or such Subsidiary is at least 75% cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(e) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $5,000,000 in any fiscal year of the Borrower;
(vi) Investments may be made to the extent permitted by Section 8.710.05;
(cvii) each of the Borrower and its Subsidiaries may lease (as lessorlessee) real or personal property in (so long as any such lease does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04(iv));
(dviii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fix) each of the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and grant leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to business of the Administrative Agent Borrower or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)its Subsidiaries;
(gx) any Subsidiary of the Borrower (other than a Receivables Subsidiaryi) may be merged or consolidated (x) with or into the Borrower or liquidated so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries corporation of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation or receives the surviving assets of such Subsidiary shall be a Wholly-Owned Subsidiary;
upon such liquidation and (hii) the Borrower and may transfer its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, assets to the Borrower or to any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1Guarantor; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;and
(jxi) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer be merged or otherwise dispose consolidated with or into any other Subsidiary of any or all of its assets to the Borrower or liquidated so long as (i) in the case of any other (x) such merger or consolidation involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving corporation of such merger or consolidation or (y) such liquidation involving a Subsidiary Guarantor, a Subsidiary Guarantor receives the assets of such Subsidiary upon such liquidation and (ii) in the case of any (x) such merger or consolidation involving a Wholly-Owned Subsidiary of the Borrower Borrower, in addition to the requirements of preceding clause (i)(x), a Wholly-Owned Subsidiary is the surviving corporation of such merger or consolidation or (y) such liquidation, in addition to the requirements of preceding clause (i)(y), a Wholly-Owned Subsidiary receives the assets of such Subsidiary upon such liquidation. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (other than (I) from to the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiarythereof);
(k) any Subsidiary , such Collateral shall be sold free and clear of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidateLiens created by the Security Documents, wind-up or dissolve;
(l) and the Borrower Administrative Agent and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets the Collateral Agent shall be authorized to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets take any actions deemed appropriate in order to effect the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Credit Agreement (Infousa Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower JCC Holding will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties (or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness time) all or any part of such agreement is conditional upon the consent of the Administrative Agent)its property or assets, or enter into any Sale sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and Leaseback Transactionintangible assets in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments Capital Expenditures by the Permitted Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) investments may be made to the extent permitted by Section 8.49.05;
(b) Investments may be made to the extent permitted by Section 8.7;
(ciii) each of the Permitted Subsidiaries may make sales of inventory, materials and equipment (including, but not limited to, obsolete, uneconomic or worn-out equipment or materials) in the ordinary course of business;
(iv) CPD and FPD may sell the Specified Real Estate at fair market value (as determined in good faith by management of JCC Holding), provided that (x) in no event shall the purchase price for any such sale be less than the cost to HJC of such Specified Real Estate, (y) all Net Sale Proceeds from any sale of the Specified Real Estate (whether or not to an Affiliate of the Borrower, CPD or FPD) shall be applied as required by Section 4.02 and (z) at least 75% of such proceeds shall be in cash and any non-cash proceeds shall be evidenced by a promissory note pledged to the Collateral Agent pursuant to the Pledge Agreement;
(v) the Borrower and its Subsidiaries may lease (as lessor) portions of the Casino for retail, restaurant and other ancillary uses so long as all such leases (i) do not in the aggregate detract from the gaming operations of the Casino in any material respect, (ii) are permitted by the Casino Operating Contract, the Casino Lease, the Gaming Regulations and applicable zoning and conditional uses and (iii) are subordinate and subject to the Borrower Mortgage;
(vi) each of the Permitted Subsidiaries may lease (as lessee) real or personal property in the ordinary course of business so long as any such lease does not create a Capitalized Lease Obligation (other than to a Receivables Subsidiary;
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablespermitted under Section 9.04);
(fvii) to facilitate the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee development of the Administrative Agent without the Specified Real Estate, and with prior consent of the licensee and no such license shall Required Banks (i) transfer ownership of such Technology to any other Person which may be granted or (ii) require the Borrower to pay any fees for any such use (such licenses permitted withheld by this Section 8.3(fthem in their sole discretion), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged CPD or consolidated (x) with or into the Borrower so long FPD, as the Borrower case may be, may transfer the Specified Real Estate owned by it to a Person which is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that not a Wholly-Owned Subsidiary or Subsidiaries shall be of JCC Holding (so long as equity interests in such Person are not owned by other Affiliates of JCC Holding and so long as the surviving entity or (z) with or into any respective such Person is created in connection accordance with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (orrequirements, to the extent that less than all applicable, of Section 9.15), free and clear of the net proceeds Lien of the CPD Mortgage or FPD Mortgage, as the case may be; provided that all Equity Interests in the respective such Person owned by JCC Holding and its Wholly-Owned Subsidiaries shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(viii) the Second Floor Sublease to JCC Development shall be permitted and JCC Development may pay rent to the Borrower under the Second Floor Sublease;
(ix) JCC Development may lease (as lessor) the Second Floor so long as any such disposition are used to acquire such other propertylease is permitted by the Casino Operating Contract, then dispositions in an amount equal to the net proceeds used to acquire such other propertyCasino Lease, the Gaming Regulations and applicable zoning and conditional uses; and
(x) shall be disregarded for purposes the Borrower may liquidate and dissolve HJC. To the extent the Required Banks waive the provisions of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property 9.02 with respect to the acquisition sale of such other property;
(j) the Borrower any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to JCC Holding or a Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (JCC Holding other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.39.02(iv) or (vii)) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions (and shall take such actions) as they deem appropriate in order to effect the release of the respective Collateral from the Liens created by the respective Security Documents.
Appears in 1 contract
Samples: Credit Agreement (JCC Holding Co)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Neither Magellan nor the Borrower will, nor will not, and will not they permit any of its their respective Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (orother than purchases or other acquisitions of inventory, with respect to materials, equipment and intangible assets in the ordinary course of business) of any such transaction involving all Person (or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments Capital Expenditures by Magellan and its Subsidiaries shall be permitted (excluding Capital Expenditures which may arise as a result of the purchase of any capital stock or other equity interests in any, or the assets constituting any, Acquired Entity or Business, which Capital Expenditures may only be made pursuant to Permitted Acquisitions or Investments effected in accordance with the extent permitted by Section 8.4relevant provisions of this Agreement);
(bii) each of Magellan and its Subsidiaries may make sales of inventory in the ordinary course of business;
(iii) Investments may be made to the extent permitted by Section 8.79.05;
(civ) each of Magellan and its Subsidiaries may sell or otherwise dispose of obsolete, uneconomic or worn-out equipment in the ordinary course of business;
(v) Magellan and its Subsidiaries may sell assets (other than (A) the capital stock or other equity interests of the Borrower and (B) the capital stock or other equity interests of any other Subsidiary of Magellan unless all of the capital stock and other equity interests of such other Subsidiary then owned by Magellan and its Subsidiaries are sold in a sale permitted by this clause (v)), so long as (a) no Default or Event of Default then exists or would result therefrom, (b) each such sale is in an arm’s-length transaction and Magellan or the respective Subsidiary receives at least fair market value (as determined in good faith by Magellan or such Subsidiary, as the case may be), (c) the consideration received by Magellan or such Subsidiary consists of at least 75% cash and is paid at the time of the closing of such sale, and (d) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $12,500,000 in any fiscal year of Magellan;
(vi) each of Magellan and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 9.04(v));
(dvii) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower Magellan and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any financing transaction or bulk sale or financing of receivables)sale;
(fviii) the Borrower each of Magellan and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture conduct of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent business of Magellan or any assignee of its Subsidiaries, in each case so long as no such grant otherwise restricts any Credit Party’s right to xxxxx x xxxx on such assets or property in favor of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Collateral Agent;
(gix) any Subsidiary of Magellan may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, Magellan or any Wholly-Owned Domestic Subsidiary of Magellan which is the Borrower (other than or a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower Subsidiary Guarantor so long as (i) in the case of any such merger, dissolution or liquidation involving the Borrower, the Borrower is the surviving entitycorporation of any such merger, dissolution or liquidation, (yii) with in all other cases, Magellan or into any one or more a Wholly-Owned Subsidiaries Domestic Subsidiary which is a Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation, (iii) the security interests granted to the Collateral Agent for the benefit of the Borrower Secured Creditors pursuant to the Security Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (other than an Unrestricted Subsidiaryto at least the same extent as in effect immediately prior to such merger, Airstar Corporationdissolution or liquidation), Huntsman Headquarters Corporation or IRIC); provided, however, and (iv) in the case of any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary or Subsidiaries of Magellan, such consideration shall be permitted to be paid at such time only to the surviving entity or extent that it could otherwise have been paid pursuant to (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary and Magellan shall be required to satisfy the provisions of) Section 8.15, 9.05(xiv) or 9.05(xv), as applicable;
(x) any Foreign Subsidiary of Magellan may merge with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary of Magellan so long as (i) in the case of any such merger, dissolution or liquidation, a Wholly-Owned SubsidiaryForeign Subsidiary of Magellan is the surviving corporation of any such merger, dissolution or liquidation, and (ii) in the case of any such transaction pursuant to which any consideration is paid to a Person that is not a Wholly-Owned Subsidiary of Magellan, such consideration shall be permitted to be paid at such time only to the extent that it could otherwise have been paid pursuant to (and Magellan shall be required to satisfy the provisions of) Section 8.15, 9.05(xiv) or 9.05(xv), as applicable;
(hxi) Permitted Acquisitions may be made to the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise extent permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.18.15; provided, however, that if and
(A) concurrently with any disposition Subsidiary of Magellan (other than the Borrower) that has no assets or within 360 days of receipt of proceeds in connection with such disposition, all liabilities (other than immaterial assets or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower liabilities) may be dissolved or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 liquidated and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower Magellan that is not a Credit Party may sellmerge with and into, leaseor be dissolved or liquidated into, or transfer or otherwise dispose of any or all of its assets to the Borrower or any other to, a Wholly Owned Subsidiary of Magellan that is not a Credit Party so long as (i) a Wholly-Owned Subsidiary of Magellan is the Borrower surviving entity of any such transaction and (ii) in the case of any such transaction pursuant to which any consideration is paid to a Person that is neither Magellan nor a Wholly-Owned Subsidiary thereof, such consideration shall be permitted to be paid at such time only to the extent that it could otherwise have been paid pursuant to (and Magellan shall be required to satisfy the provisions of) Section 8.15, 9.05(xiv) or 9.05(xv), as applicable. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02 (other than (I) from the Borrower to Magellan or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiarythereof);
(k) any Subsidiary , such Collateral shall be sold free and clear of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidateLiens created by the Security Documents, wind-up or dissolve;
(l) and the Borrower Administrative Agent and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets the Collateral Agent shall be authorized to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets take any actions deemed appropriate in order to effect the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3foregoing.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Facility (Magellan Health Services Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Holdings will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter merge or consolidate into or with any transaction of merger or consolidationPerson, or convey, sell, lease or otherwise dispose of any of its properties property or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)assets, or enter into any Sale and Sale-Leaseback TransactionTransactions, or purchase or otherwise acquire an Acquired Entity or Business, except that:
(a) Restricted Payments each of the Borrower and its Subsidiaries may be made to sell inventory in the extent permitted by Section 8.4ordinary course of business;
(b) each of the Borrower and its Subsidiaries may liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(c) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary9.05;
(d) each of the Borrower and its Subsidiaries may make sales sell assets (including by way of merger or transfers consolidation or in connection with Sale-Leaseback Transactions) so long as (i) no Default or Event of inventoryDefault has occurred and is continuing or would result therefrom, Cash(ii) the Borrower or the respective Subsidiary receives at least Fair Market Value as determined in good faith by the Borrower, (iii) with respect to any such transaction in which the purchase price is in excess of $6,000,000, the consideration received by the Borrower or such Subsidiary consists of at least 75% cash or Cash Equivalents paid at the time of the closing of such sale; provided, however, that for the purposes of this clause (iii), (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that is secured by Liens that are subordinated to the Liens securing the Obligations or that are owed to the Borrower or any Subsidiary) of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or the notes thereto)) that are assumed by the transferee of any such assets and Foreign for which the Borrower and/or its applicable Subsidiary have been validly released by all relevant creditors in writing, (x) the amount of any trade-in value that has been applied to the purchase price of any replacement assets acquired in connection with such disposition, (y) any securities received by the Borrower or any Subsidiary from such transferee that have been converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable disposition and (z) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at such time outstanding, not to exceed the ordinary course greater of business (A) $10,000,000 and (B) 10.0% of Consolidated EBITDA as of the last day of the most recent Test Period at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash, and (iv) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(c); provided, that no capital stock or other Equity Interests of any Subsidiary shall be sold pursuant to this clause (d), unless (1) all of the capital stock or other Equity Interests of such Subsidiary are sold in accordance with this clause (d) or (2) such sale is a sale of less than 100% of the capital stock or other Equity Interests of an Excluded Subsidiary; provided, that the aggregate Fair Market Value of all such sales of capital stock or other Equity Interests pursuant to a Receivables Subsidiarythis clause (2) does not exceed 2.5% of Consolidated Total Assets of the Borrower and its Subsidiaries as of the date of any such sale;
(e) each of the Borrower and its Subsidiaries may lease (as lessee), sublease (as sublessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04(d)); provided, that Holdings and its Subsidiaries may not (i) exclusively license any of their Material Intellectual Property to non-Credit Parties or (ii) sell, contribute, transfer, assign or dispose of any of their Material Intellectual Property to Affiliates that are non-Credit Parties;
(f) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fg) each of the Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and other leases or subleases (including with respect to intellectual property relating property, to the manufacture extent such license, sublicense, lease or sublease is non-exclusive) to other Persons in the ordinary course of chemical products and by-products (business not materially interfering with the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee conduct of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary business of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiaryits Subsidiaries;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sellconvey, lease, transfer sell or otherwise dispose of transfer all or any or all part of its business, properties and assets to any Qualified Credit Party, so long as any security interests granted to the Borrower or any other Wholly-Owned Subsidiary Collateral Agent for the benefit of the Borrower Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect (other than including, as the case may be, as same may be replaced by the transferee Qualified Credit Party) and perfected (Ito at least the same extent as in effect immediately prior to such transfer) from the Borrower and all actions required to maintain or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)renew said perfected status have been taken;
(ki) any Subsidiary of the Borrower may merge or consolidate with and into, or be dissolved or liquidated into, any Qualified Credit Party, so long as (other than i) in the case of any such merger, consolidation, dissolution or liquidation involving the Borrower, the Borrower is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, (ii) in the case of any such merger, consolidation, dissolution or liquidation involving a Receivables SubsidiaryCredit Party, a Credit Party is the surviving or continuing entity of any such merger, consolidation, dissolution or liquidation, and (iii) may voluntarily liquidate, wind-up all actions required to create or dissolvemaintain perfected Liens in respect of assets required to be Collateral have been taken;
(lj) the Borrower and its Subsidiaries mayPermitted Acquisitions may be consummated, directly including by way of merger or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuerconsolidation, in each case pursuant to accordance with the Receivables Documents under a Permitted Accounts Receivables Securitizationrequirements of Section 8.13;
(mk) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) each of the Borrower and its Subsidiaries may consummate liquidate or otherwise dispose of Cash Equivalents, in each case for cash or Cash Equivalents;
(l) Liens may be granted to the US Commodity Business Sale provided extent permitted by Section 9.01;
(m) any involuntary loss, damage or destruction of property and the disposition of the assets so damaged or destroyed shall be permitted;
(n) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property shall be permitted;
(o) the lapse, abandonment or cancellation of patents, trademarks and other intellectual property of the Borrower and its Subsidiaries shall be permitted in the reasonable business judgment of the Borrower or such Subsidiary, to the extent such intellectual property is not Material Intellectual Property;
(p) any Subsidiary of the Borrower that is not less than 75a Credit Party may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Subsidiary of the Borrower that is not a Credit Party, so long as any security interests required to be granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents or Section 8.12 in the Equity Interests of such Subsidiary shall remain in full force and effect, or as the case may be, be granted, and perfected and enforceable and all actions required to maintain or create said perfected status have been taken;
(q) Dividends may be paid to the extent permitted by Section 9.03;
(r) the discount of Inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable may be made, in each case, consistent with past practices prior to the Closing Date;
(s) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings may be made; and
(t) Holdings may merge or consolidate with and into, or be dissolved or liquidated into, any direct or indirect parent of Holdings (“Parent”) so long as (i) as a result of such merger, consolidation, liquidation or dissolution, Parent shall directly own 100% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); Equity Interests of Borrower and (ii) repay Senior Notes concurrently with such merger, Parent signs a joinder to this Credit Agreement in form and substance reasonably satisfactory to the Administrative Agent and Required Lenders (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans and pursuant to which Parent agrees to become “Holdings” hereunder and subject to all of the rights and obligations of Holdings hereunder), along with such other security documents as may be reasonably requested by the Agents, and otherwise complies with Section 4.38.12; provided, that, for the avoidance of doubt, concurrent with such merger, consolidation or liquidation, all actions required to give the Collateral Agent a perfected security interest in the Equity Interests of the Borrower shall have been taken, including, without limitation, that Parent has delivered to the Collateral Agent certificates, together with undated powers (or other documents of transfer acceptable to the Collateral Agent) endorsed in blank by Xxxxxx, representing the Equity Interests of the Borrower. For the avoidance of doubt, such transaction shall not be deemed a “Change of Control”. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale, transfer or disposition of any Collateral, or any Collateral is sold, transferred or disposed of as permitted by this Section 9.02 (other than to a Credit Party), such Collateral shall be sold, transferred or disposed of free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Collateral Agent are hereby authorized and directed to take any actions reasonably requested by the Borrower in order to effect or evidence the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Company will not, and will not permit any of its Subsidiaries Subsidiary to, wind up, liquidate or dissolve any of their affairs its affairs, or enter into any transaction of merger or consolidation, or conveysell or otherwise dispose of all or any part of its property or assets (other than inventory, sellworn-out, unuseful or obsolete equipment or excess equipment in the ordinary course of business) or purchase, lease or otherwise dispose acquire all or any part of the property or assets of any Person (other than purchases or other acquisitions of its properties inventory, leases, materials and equipment in the ordinary course of business) or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement agree to do any of the foregoing at any future time (without a contingency relating to obtaining any required approval hereunder or the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent or contemporaneous satisfaction of the Administrative AgentObligations), or enter into any Sale and Leaseback Transaction, except thatthat the following shall be permitted:
(a) Restricted Payments may be made to the extent permitted by Section 8.4;
(b) Investments may be made to the extent permitted by Section 8.78.6;
(cb) each of the Borrower Company and its Subsidiaries may lease (as lessorlessee) real or personal property in the ordinary course of business other than (so long as any such lease does not create a Capitalized Lease Obligation except to a Receivables Subsidiarythe extent permitted by Section 8.2(c));
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(ec) the Borrower Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (xi) which are overdue, or (yii) which the Borrower or such Subsidiary Company may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(fd) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any Credit Party and/or other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower into, or be liquidated into, a Credit Party (so long as (A) a Credit Party is the surviving corporation, (B) if such merger or consolidation involves a Borrower, a Borrower is the surviving entitycorporation, and (C) no Event of Default results therefrom), (yii) any Subsidiary that is not a Credit Party may be merged or consolidated with or into or be liquidated into, another Subsidiary that is not a Credit Party, (iii) all or any one or more Wholly-Owned Subsidiaries part of the business, properties and assets of a Credit Party or other Subsidiary may be conveyed, leased, sold, licensed or otherwise transferred to a Credit Party so long as no Event of Default arises therefrom under any provision of this Agreement other than this Section 8.3 and (iv) all or any part of the business, properties and assets of a Subsidiary that is not a Credit Party may be conveyed, leased, sold, licensed or otherwise transferred to another Subsidiary that is not a Credit Party;
(e) the Acquisition (including all intercompany loans, advances and investments made to effectuate same);
(f) any Borrower may acquire (other than through an Unrestricted unsolicited public offer) assets constituting all or substantially all of a business, business unit, division or product line of any Person not already a Subsidiary of such Borrower or Capital Stock of any such Person (including any such acquisition by way of merger or consolidation) to the extent such acquired Person or the surviving entity of such merger or consolidation is or becomes a Credit Party (any such acquisition permitted by this clause (f), a "Permitted Acquisition"), so long as (i) no Unmatured Event of Default or Event of Default (including under this Section 8.3) then exists (both before and after giving effect to such Permitted Acquisition), (ii) after giving effect thereto on a pro forma basis for the period (the "Pro Forma Period") of four Fiscal Quarters ending with the Fiscal Quarter for which financial statements have most recently been delivered (or were required to be delivered) under Section 7.1 (on the basis that (A) any Indebtedness incurred or assumed in connection with such Permitted Acquisition was incurred or assumed at the beginning of the Pro Forma Period, (B) such Indebtedness was repaid from operating cash flow over the Pro Forma Period at the intervals and in the amounts reasonably projected to be paid in respect of such Indebtedness over the 12-month period immediately following the Acquisition, (C) if such Indebtedness bears a floating interest rate, such interest shall be paid over the Pro Forma Period at the rate in effect on the date of such Acquisition, and (D) all income and expense associated with the assets or entity acquired in connection with such Permitted Acquisition for the most recently ended four Fiscal Quarter period for which such income and expense amounts are available (with good faith estimates thereof being permitted if financial statements indicating such amounts are not available) shall be treated as being earned or incurred by the Company over the Pro Forma Period on a pro forma basis), no Event of Default or Unmatured Event of Default would exist hereunder, (iii) the business acquired pursuant to such Permitted Acquisition is engaged in the pulp and paper industry, (iv) all documentation governing such Permitted Acquisition is reasonably acceptable to Agent, (v) the Company delivers an officer's certificate to Agent certifying as to compliance with the requirements of this clause (f) and containing the calculations required pursuant to clauses (A) through (D) above establishing compliance with the covenants set forth in Article IX, and (vi) any Person acquired in connection with Permitted Acquisition shall have executed and delivered to Agent a Subsidiary Guaranty upon the consummation thereof if such acquired Person is a Material Subsidiary; and
(g) other sales or dispositions of assets not otherwise permitted hereunder (whether by merger, Airstar Corporation, Huntsman Headquarters Corporation consolidation or IRIC)otherwise) occurring after the Closing Date which are made for fair market value; provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereofany such sale or disposition, no Event of Default or Unmatured Event of Default exists or would result from therefrom and (ii) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all assets so transferred by the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower Company and its Subsidiaries as together shall not exceed 7.5% of the end of the immediately preceding Consolidated Total Assets in any Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1Year; provided, howeverand provided further, that if (A) concurrently with any disposition in the event the amount of sales and dispositions of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal permitted to the net proceeds of such disposition are used be made by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower Company and its Subsidiaries may, directly or indirectly, sell, contribute under this clause (g) in any Fiscal Year is greater than the actual amount of such sales and make other transfers of Receivables Facility Assets dispositions under this clause (g) during such Fiscal Year (such excess being referred to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to herein as the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010"Rollover Amount"); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.,
Appears in 1 contract
Samples: Credit Agreement (Glatfelter P H Co)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Credit Parties will not, and will not permit any of its their Subsidiaries to, directly or indirectly, wind up, liquidate or dissolve any of their affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties their property or assets assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (or, with respect to any such transaction involving in one or a series of related transactions) all or substantially all of the assets of the Borrower, enter into any Person or assets substantially constituting an agreement operating division or line of business of any Person (or agree to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agenttime), or enter into any Sale and Leaseback Transaction, except that:
(ai) Restricted Payments any Subsidiary other than a Credit Party may be made sell assets (other than Gener Shares), so long as (A) no Default or Event of Default then exists or would result therefrom, (B) each such sale is at arm's-length and such Subsidiary, receives at least fair market value (as determined in good faith by such Subsidiary, (C) 100% of the total consideration received by such Subsidiary is cash and is paid at the time of the closing of such sale, and (D) the Net Disposition Proceeds therefrom are applied as required by Section 3.3(b);
(ii) any Subsidiary other than a Credit Party may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation, except to the extent permitted by Section 8.47.4(iv));
(biii) Investments any Subsidiary (other than a Credit Party) may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property make sales in the ordinary course of business business;
(iv) any Subsidiary (other than to a Receivables Credit Party) may sell obsolete or worn-out equipment or materials or equipment or materials that are no longer used or useful in the business of such Subsidiary;
(dv) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business any Subsidiary (other than to a Receivables Subsidiary;
(eCredit Party) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale);
(fvi) any Subsidiary (other than a Credit Party) may grant leases or subleases to other Persons in the Borrower ordinary course of business consistent with past practice and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to not materially interfering with the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee conduct of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership business of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”)Subsidiary;
(gvii) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower Credit Party may sell, lease, transfer or otherwise dispose of any or all of its assets to property (upon voluntary liquidation or otherwise) to, or merge or consolidate with, such Credit Party so long as in the Borrower case of any such merger or any other Wholly-Owned Subsidiary of consolidation such Credit Party is the Borrower (other than (I) from the Borrower continuing or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary)surviving corporation;
(kviii) any Subsidiary of Liens may be granted to the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolveextent permitted by Section 7.1;
(lix) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary Dividends may sell and make other transfers of Receivables Facility Assets be paid to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Securitizationextent permitted by Section 7.3;
(mx) Foreign Subsidiaries Investments may enter into Foreign Factoring Transactionsbe made to the extent permitted by Section 7.5;
(xi) the Cayman Acquisition shall be permitted;
(xii) the Argentine Disposition shall be permitted; and
(nxiii) Gener and Subsidiaries shall be permitted to sell all of their rights and assets (including contractual obligations) in connection with projects in development as of the Effective Date, so long as (A) the Borrower cash consideration received in connection with such sale is at least equal to the aggregate amount of Investments made in such project by Gener and its Subsidiaries or (B) the Required Lenders shall have consented to the terms of such sale (such consent not to be unreasonably withheld). Notwithstanding the foregoing, no Credit Party nor any Subsidiary thereof may consummate the US Commodity Business Sale provided that not sell, transfer or dispose of a portion less than 75% all of the Net Sale Proceeds therefrom are used within 90 days shares held by it in any of its directly-owned Subsidiaries, except where such transfer, disposition or sale is made to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3another Credit Party or Subsidiary thereof.
Appears in 1 contract
Samples: Senior Secured Bridge Credit Agreement (Aes Corporation)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower Company will not, and will not permit any of its Subsidiaries to, (i) wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or (ii) convey, sell, lease or otherwise dispose of all or any part of its properties property or assets assets, or enter into any sale-leaseback transactions, or (oriii) make any Investment, with respect to any such transaction involving purchase all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent)of, or enter into the assets constituting a business, division or product line of, any Sale and Leaseback TransactionPerson or make any Capital Expenditures, except that:
(a) Restricted Payments may Capital Expenditures by the Company and its Subsidiaries shall be made to the extent permitted by (other than Capital Expenditures constituting a Permitted Acquisition or an Asset Acquisition unless permitted under Section 8.410.02(k) or (v));
(b) the Company and its Subsidiaries may sell inventory in the ordinary course of business;
(c) the Company and its Subsidiaries may liquidate or otherwise dispose of obsolete, expired or worn-out property in the ordinary course of business;
(d) Investments may be made to the extent permitted by Section 8.710.05;
(ce) the Company and its Subsidiaries may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (e)), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each such sale is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration received by the Company or such Subsidiary consists of at least 75% cash or Cash Equivalents and is paid at the time of the Borrower closing of such sale, and (iv) the Net Sale Proceeds therefrom are applied as (and to the extent) required by Section 5.02(b) and (v) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (e) shall not exceed $15,000,00025,000,000 in any fiscal year of the Company (for this purpose, in each case, using the Fair Market Value of property other than cash);
(f) the Company and its Subsidiaries may lease (as lessorlessee) or license (as licensee) real or personal property in (so long as any such lease or license does not create a Capitalized Lease Obligation except to the ordinary course of business other than to a Receivables Subsidiaryextent permitted by Section 10.04(d) or (p));
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(eg) the Borrower Company and its Subsidiaries may sell or discount, in each case without recourse (other than customary indemnities in respect of third party liens and claims and customary reductions in purchase price for claims against the Company or a Subsidiary for failure to comply with the terms of the contract under which the accounts receivable or lease receivables arose) and in the ordinary course of business, Accounts Receivable (i) accounts receivable and lease receivables arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patentstransaction, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require accounts receivable and lease receivables arising in the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary ordinary course of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower business that do not constitute Eligible Accounts so long as such sale or discount is not part of any financing transaction (it being understood, for the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries avoidance of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, howeverdoubt, that any sale or discount of such accountaccounts receivable or lease receivables without any repurchase obligation shall not constitute a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or financing transaction) and (ziii) with or into any Person letters of credit from customers in connection with the consummation order to collect payments in respect of an Acquisition; provided, however, that after giving effect to such merger account receivable or consolidation lease receivable earlier than otherwise due in the surviving Subsidiary shall be a Wholly-Owned Subsidiaryordinary course of business and not as part of any financing transaction;
(h) the Borrower Company and its Subsidiaries may sellgrant licenses, transfer sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Company or any of its Subsidiaries, in each case so long as no such grant otherwise dispose affects in any material respect the Collateral Agent’s security interest in the asset or property subject thereto (other than in respect of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunderPermitted Liens related thereto);
(i) (t) the U.S. Borrowers may transfer assets between or among one another, (u) the U.S. Borrowers may transfer assets (other than Eligible Accounts and Eligible Inventory) to a U.S. Subsidiary Guarantor, (v) the U.S. Subsidiary Guarantors may transfer assets between or among one another or to a U.S. Borrower, (w) the Canadian Borrowers may transfer assets between or among one another, to a U.S. Borrower or (other than Eligible Accounts and Eligible Inventory) to a Canadian Subsidiary Guarantor, (x) the Canadian Subsidiary Guarantors may transfer assets between or among one another or to a Canadian Borrower or a U.S. Borrower, (y) any Subsidiary of the Company that is not a Credit Party may transfer assets between or among one another or to a Credit Party and (z) the Credit Parties may (I) transfer spares, equipment and inventory to be used for internal research and development, customer demonstrations, homologation and other general business purposes to any Subsidiary of the Company in the ordinary course of business and on a basis consistent with past practice and (II) assign purchase orders and customer contracts in the ordinary course of business to comply with applicable law or otherwise in such Credit Party’s reasonable business judgment to address legal, trade, regulatory or tax considerations in the ordinary course of business, in each case (other than with respect to preceding clause (z) unless such assets are transferred to another Credit Party) so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken (other than with respect to up to $10,000,00015,000,000 in the aggregate in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% fiscal year of the Consolidated Net Tangible Assets the Borrower Company of spares, equipment and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, inventory that if are both (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or transferred from a portion of an amount equal Credit Party to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 Canadian Credit Party and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such propertymaintained at a location in Quebec, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertyCanada);
(j) the Borrower or (v) any Domestic Subsidiary of the Borrower Company may sellbe merged, lease, transfer consolidated or otherwise dispose liquidated with or into a U.S. Credit Party (so long as (i) in the case of any such merger, consolidation or all liquidation involving the Company, the Company is the surviving Person, (ii) in the case of its assets to any such merger, consolidation or liquidation involving another U.S. Borrower, a U.S. Borrower is the surviving Person, and (iii) in the case of any such other merger, consolidation or liquidation, a U.S. Credit Party is the surviving Person), (w) any Canadian Subsidiary may be merged, amalgamated, consolidated or liquidated with or into (i) any Canadian Credit Party (so long as (A) in the case of any such merger, amalgamation, consolidation or liquidation involving a Canadian Borrower, a Canadian Borrower is the surviving Person, and (B) in the case of any such other merger, amalgamation, consolidation or liquidation, a Canadian Credit Party is the surviving Person), (ii) in the case of any other Wholly-Owned Canadian Subsidiary that is not a Canadian Borrower, any U.S. Credit Party (so long as such U.S. Credit Party is the surviving Person) or (iii) in the case of Canadian Subsidiary that is a Canadian Borrower, any U.S. Borrower (so long as such U.S. Borrower is the surviving Person), (x) any Domestic Subsidiary of the Borrower Company that is not a U.S. Credit Party may be merged, consolidated or liquidated with or into any other Domestic Subsidiary of the Company that is not a U.S. Credit Party, (y) any Canadian Subsidiary of the Company that is not a Canadian Credit Party may be merged, amalgamated, consolidated or liquidated with or into another Canadian Subsidiary of the Company that is not a Canadian Credit Party, and (z) any Foreign Subsidiary of the Company (other than a Canadian Subsidiary) may be merged, consolidated or liquidated with or into (Ii) from the Borrower or a Domestic Subsidiary to a any other Foreign Subsidiary of the Company (other than a Canadian Subsidiary, in each case so long as any security interests granted to the Collateral Agent for the benefit of the Secured Creditors in the assets (and Equity Interests) of any such Person subject to any such transaction shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, amalgamation, consolidation or liquidation) and all actions required to maintain said perfected status have been taken or (IIii) to a Receivables Subsidiaryany Credit Party (so long as such Credit Party is the surviving Person);
(k) (i) Permitted Acquisitions may be consummated in accordance with the requirements of Section 9.13; and (ii) the Company and its Subsidiaries may consummate any Subsidiary Asset Acquisition not otherwise constituting a Permitted Acquisition so long as, in the case of this clause (ii), (w) the Payment Conditions are satisfied both before and after giving effect to such Asset Acquisition, (x) if the assets acquired pursuant to such Asset Acquisition are to be included in any applicable Borrowing Base as of the Borrower date of such Asset Acquisition, the Company shall have delivered to the Administrative Agent a Borrowing Base Certificate, completed on a Pro Forma Basis giving effect to the respective Asset Acquisition, (other y) if any assets acquired pursuant to such Asset Acquisition are to be included in any applicable Borrowing Base, the Administrative Agent shall have received (or, if such assets would contribute an amount equal to or less than $10,000,000 to the Borrowing Base, only to the extent requested by the Administrative Agent) (1) an appraisal of such assets constituting Inventory of the U.S. Borrowers so acquired in such Asset Acquisition, (2) a Receivables Subsidiarycollateral examination of such Inventory and (3) may voluntarily liquidatea collateral examination of such assets constituting Accounts of the respective Borrowers so acquired in such Asset Acquisition, windin each case, in scope and form, and from a third-up or dissolveparty appraiser and a third-party consultant, respectively, reasonably satisfactory to the Administrative Agent and at the sole cost and expense of the Company and (z) the Company shall have delivered to the Administrative Agent a certificate executed by an Authorized Officer of the Company, certifying to such officer’s knowledge, compliance with the requirements of preceding clauses (w) through (y), inclusive and demonstrating (in reasonable detail) the calculations required by clauses (ii) and (iii) of the definition of Payment Conditions, inclusive; provided, that such certificate shall not be required to contain such calculations if, at the time of such Asset Acquisition (and after giving pro forma effect thereto), the Credit Parties and their Subsidiaries have at least $500,000,000 in the aggregate of Unrestricted cash and Cash Equivalents;
(l) the Borrower Company and its Subsidiaries maymay (i) use or transfer xxxx xxxx a manner not prohibited by the terms of the Credit Documents, directly and (ii)(a) liquidate or indirectlyotherwise dispose of Cash Equivalents, sell(b) liquidate, contribute unwind or otherwise dispose of Call Spread Options, and make other transfers (c) liquidate or otherwise dispose of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the IssuerOther Financial Investments, in each case pursuant to in this sub-clause (ii), for cash at Fair Market Value in a manner not prohibited by the Receivables Documents under a Permitted Accounts Receivables Securitizationterms of the Credit Documents;
(m) Foreign Subsidiaries Dividends may enter into Foreign Factoring Transactions; andbe paid to the extent permitted by Section 10.03;
(n) the Borrower Company and its Subsidiaries may consummate cancel or, abandon or otherwise dispose of intellectual property rights which are, in the US Commodity Business Sale reasonable business judgment of the Company or such Subsidiary, no longer used or useful in, the business of the Company or such Subsidiary;
(o) the Company and its Subsidiaries may dispose of property and assets to the extent such property and assets were the subject of a casualty or condemnation proceedings upon the occurrence of the related Recovery Event;
(p) the Company and its Subsidiaries may sell property or assets in transactions not otherwise permitted by this Section 10.02 provided that (x) the Net Sale Proceeds received from all assets or property sold pursuant to this clause (p) shall not less than 75% exceed $5,000,00025,000,000 in any fiscal year of the Company and (y) the Net Sale Proceeds therefrom are used within 90 days applied as (and to the extent) required by Section 5.02(b);
(q) any non-operating Subsidiary of the Company with no material assets and no material liabilities may wind up, liquidate or dissolve;
(r) the Company and its Subsidiaries may grant Permitted Liens;
(s) dispositions of equipment or real property to the extent that (i) repay Senior Secured Notes (2010); such property is exchanged for credit against the purchase price of similar replacement property or (ii) repay Senior Notes the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property; and
(2012)t) (t) dispositions and transfers of property by Cyan (or the Company as successor by merger to Cyan) or any Subsidiary of Cyan to the Company or any Subsidiary of the Company; provided that the property which is the subject of any such disposition and transfer is limited to property of Cyan and its Subsidiaries held immediately prior to the Cyan Acquisition.;
(iiiu) repay Receivables Facility Attributed Indebtedness and/or the Company and its Subsidiaries may convey, sell, lease or otherwise dispose of property or assets not included in any Borrowing Base between or among themselves in an aggregate amount not to exceed $50,000,000;
(ivv) so long as no Default or Event of Default then exists or would result therefrom, the Company and its Subsidiaries may make a voluntary prepayment additional Asset Acquisitions not otherwise permitted by this Section 10.02 in an aggregate amount (together with the aggregate outstanding amount of Term Loans Investments made pursuant to Section 4.310.05(v)) not to exceed $100,000,000; and
(w) the Company and its Subsidiaries shall be permitted to make xxxxxxx money deposits permitted by Section 10.01(r).
Appears in 1 contract
Samples: Abl Credit Agreement (Ciena Corp)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their its affairs or enter into any partnership, joint venture, or transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its properties property or assets (or, with respect to any such transaction involving all or substantially all including without limitation sales of capital stock and Equity Interests in Subsidiaries) (other than sales of inventory in the assets ordinary course of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agentbusiness), or enter into any Sale sale-leaseback transactions in which the Borrower or any Subsidiary is the obligor, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and Leaseback Transactionequipment in the ordinary course of business) of any Person, except that:
(ai) Restricted Payments the Borrower and its Subsidiaries may be made to sell, convey or otherwise dispose of obsolete, worn-out or surplus property in the extent permitted by Section 8.4ordinary course of business;
(bii) Investments may be made to the extent permitted by Section 8.78.05, Liens may be incurred to the extent permitted by Section 8.01, and Dividends may be paid to the extent permitted by Section 8.03;
(ciii) each of the Borrower and its Subsidiaries may lease sell assets (as lessor) real or personal property in the ordinary course of business other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (iii)), so long as (w) no Default or Event of Default then exists or would result therefrom, (x) each such sale is in an arm’s-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (y) at least 75% of the consideration received by the Borrower or such Subsidiary consists solely of cash or Cash Equivalents and is paid at the time of the closing of such sale, and (z) the aggregate amount of the proceeds received from all assets sold pursuant to a Receivables Subsidiarythis clause (iv) does not exceed $7.5 million;
(div) each of the Borrower and its Subsidiaries may make sales purchase or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents otherwise acquire property or assets in the ordinary course of business other than an aggregate amount not to a Receivables Subsidiaryexceed $10.0 million;
(ev) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable accounts receivable arising in the ordinary course of business (x) which are overduebusiness, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables)transaction;
(fvi) each of the Borrower and its Subsidiaries may license its patentsgrant licenses, trade secretssublicenses, know-how and leases or subleases to other intellectual property relating to Persons not materially interfering with the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee conduct of the Administrative Agent without the consent business of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other propertySubsidiaries;
(jvii) the Borrower or any Subsidiary of the Borrower may sellconvey, lease, transfer license, sell or otherwise dispose of transfer all or any or all part of its business, properties and assets to the Borrower or to any other Wholly-Owned Subsidiary; provided that any conveyance, lease, license, sale or transfer made by a Credit Party to any Subsidiary that is not a Credit Party pursuant to this clause (vii) shall be for consideration that is equal to the Fair Market Value of the Borrower business, property or assets conveyed, leased, licensed, sold or transferred; and provided further that the proceeds of any conveyance, lease, license, sale or transfer pursuant to this clause (other than (Ivii) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiaryshall be applied in accordance with Section 4.02(c);
(kviii) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidatemerge or consolidate with and into, wind-up or dissolvebe dissolved or liquidated into, the Borrower or any Guarantor, so long as the Borrower or such Guarantor is the surviving or continuing corporation of any such merger or consolidation;
(lix) any Subsidiary of the Borrower that is not a Guarantor may be merged, consolidated or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its Subsidiaries mayassets to, directly or indirectly, sell, contribute and make other transfers any Subsidiary that is not a Guarantor of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables SecuritizationBorrower;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(nx) the Borrower and its Subsidiaries may consummate sell, convey or otherwise dispose of cash and Cash Equivalents in the US Commodity Business Sale provided ordinary course of business, in each case for cash at Fair Market Value;
(xi) any Subsidiary that is a Credit Party may sell or issue any of such Subsidiary’s Equity Interests to any Credit Party, and any Subsidiary that is not less than 75% a Credit Party may sell or issue any of such Subsidiary’s Equity Interests to the Borrower or any Subsidiary;
(xii) the Acquisition shall be permitted in accordance with the terms of the Net Sale Proceeds therefrom are used within 90 days Acquisition Documents;
(xiii) the Borrower may sell the assets described in Schedule VI for Fair Market Value; and
(xiv) the Borrower and its Subsidiaries may purchase or otherwise acquire Intellectual Property in an aggregate amount not to (i) repay Senior Secured Notes (2010); (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3exceed $15.0 million.
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Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of their affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties or assets (or, with respect to any such transaction involving all or substantially all of the assets of the Borrower, enter into an agreement to do any of the foregoing at any future time without the Administrative Agent’s prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent), or enter into any Sale and Leaseback Transaction, except that:
(a) Restricted Payments may be made to the extent permitted by Section 8.4[Reserved];
(b) Investments may be made to the extent permitted by Section 8.7;
(c) each of the Borrower and its Subsidiaries may lease (as lessor) real or personal property in the ordinary course of business other than to a Receivables Subsidiary;
(d) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business other than to a Receivables Subsidiary;
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts Receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(f) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property relating to the manufacture of chemical products and by-products (the “Technology”) provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this Section 8.3(f), hereafter “Permitted Technology Licenses”);
(g) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation or IRIC); provided, however, that a Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; provided, however, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary;
(h) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease otherwise permitted hereunder;
(i) in any Fiscal Year, the Borrower or any Subsidiary may dispose of any of its assets (including in connection with Sale and Leaseback Transactions not involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease) if the aggregate net book value (at the time of disposition thereof) of all assets disposed of by the Borrower and its Subsidiaries in such Fiscal Year pursuant to this clause (i) plus the aggregate net book value of all the assets then proposed to be disposed of does not exceed 12.5% of the Consolidated Net Tangible Assets the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Quarter for which the Borrower has delivered financial statements as required by Section 7.1; provided, however, that if (A) concurrently with any disposition of assets or within 360 days of receipt of proceeds in connection with such disposition, all or a portion of an amount equal to the net proceeds of such disposition are used by the Borrower or a Subsidiary to acquire other property used or to be used in the business referred to in Section 8.9 and (B) the Borrower or such Subsidiary has complied with the provisions of Section 7.11 with respect to such property, then such dispositions (or, to the extent that less than all of the net proceeds of any such disposition are used to acquire such other property, then dispositions in an amount equal to the net proceeds used to acquire such other property) shall be disregarded for purposes of calculations pursuant to this Section 8.3(i)) (and shall otherwise be deemed to be permitted under this Section 8.3) from and after the date such proceeds are so used to acquire such property with respect to the acquisition of such other property;
(j) the Borrower or any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than (I) from the Borrower or a Domestic Subsidiary to a Foreign Subsidiary or (II) to a Receivables Subsidiary);
(k) any Subsidiary of the Borrower (other than a Receivables Subsidiary) may voluntarily liquidate, wind-up or dissolve;
(l) the Borrower and its Subsidiaries may, directly or indirectly, sell, contribute and make other transfers of Receivables Facility Assets to a Receivables Subsidiary and such Receivables Subsidiary may sell and make other transfers of Receivables Facility Assets to the Issuer, in each case pursuant to the Receivables Documents under a Permitted Accounts Receivables Receivable Securitization;
(m) Foreign Subsidiaries may enter into Foreign Factoring Transactions; and
(n) the Borrower and its Subsidiaries may consummate the US Commodity Business Sale provided that not less than 75% of the Net Sale Proceeds therefrom are used within 90 days to (i) repay Senior Secured Notes (2010); , (ii) repay Senior Notes (2012); (iii) repay Receivables Facility Attributed Indebtedness and/or (iv) make a voluntary prepayment of Term Loans pursuant to Section 4.3.
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