Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, (a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that: (i) any Restricted Subsidiary may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuing; and (ii) any entity (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (x) the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (z) no Default or Event of Default shall exist and be continuing; and (iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default or Event of Default shall exist and be continuing; or (b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that: (i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted Subsidiary; and (ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and (iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7, provided that each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled; or (1) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(i) or (b)(iii) of this SECTION 10.7 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless: (i) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing; and (ii) one of the following two conditions shall be satisfied: (A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or (B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and (iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50
Appears in 1 contract
Consolidation, Merger, Sale of Assets, etc. The Company will not, in any transaction or series of transactions, merge or consolidate with or into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets as an entirety to, any Person or Persons, and the Company will not permit any Restricted Subsidiary toof its Subsidiaries to enter into any such transaction or series of transactions if such transaction or series of transactions, directly in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or indirectly,
(a) consolidate with other disposition of all or merge into substantially all of the properties and assets of the Company and its Subsidiaries, taken as a whole, to any other Person or permit any other Person to consolidate with or merge into itPersons, except thatunless:
(i) either (a) (1) if the transaction or transactions is a merger or consolidation involving the Company, the Company shall be the surviving Person of such merger or consolidation, or (2) if the transaction or transactions is a merger or consolidation involving a Subsidiary of the Company, such Subsidiary shall be the surviving Person of such merger or consolidation and such surviving Person shall be a Subsidiary of the Company, or (b) (1) the Person formed by any Restricted Subsidiary may consolidate with such consolidation or merge into which the Company or a Wholly-Owned Restricted such Subsidiary if is merged or to which the properties and assets of the Company or a Wholly-Owned Restricted and/or such Subsidiary, as the case may be, are transferred (any such surviving Person or transferee Person being a "Surviving Entity") shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuing; and
(ii) any entity (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (x) the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (z) no Default or Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or America, any state thereof or the District of ColumbiaColumbia and (2)(A) in the case of a transaction involving the Company, with substantially all of its properties located the Surviving Entity shall expressly assume by a supplemental indenture executed and its business conducted (without giving effect delivered to the properties owned byTrustee, and in form satisfactory to the business conducted byTrustee, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes all the obligations of the Company under the Securities and this AgreementIndenture, and, in each case, this Indenture shall remain in full force and effect, or (B) in the case of a transaction involving a Subsidiary that is a Guarantor, the Notes Surviving Entity shall expressly assume by a supplemental indenture executed and delivered to the other Financing Documents to which the Company is a partyTrustee, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably in form satisfactory to the Required Holders with respect to Trustee, all the due authorization and execution of the related agreement of assumption and the enforceability obligations of such agreement against Subsidiary under its Guarantee and related supplemental indenture, and, in each case, such corporation or partnership Guarantee and the continued effectiveness supplemental indenture shall remain in full force and priority of the Liens of the Security Documents, effect;
(yii) immediately after giving effect to such transaction, such corporation related transaction or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied series of transactions on a pro forma basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b)(including, of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transactionwithout limitation, satisfaction of this requirement any Indebtedness incurred or anticipated to be set forth incurred in reasonable detail connection with or in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 or series of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(ftransactions), no Default shall have occurred and be continuing;
(ziii) immediately after giving effect to such transaction no Default or Event series of Default shall exist and transactions on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be continuing; or
(b) sellincurred in connection with or in respect of such transaction or series of transactions), lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or the Surviving Entity, as the case may be, could incur $1.00 of additional Indebtedness pursuant to a Wholly-Owned Restricted Subsidiarythe proviso in Section 4.8; and
(iiiv) subject the Company shall deliver, or cause to compliance be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, transfer, lease, assignment or other disposition and the supplemental indenture in respect thereof comply with clause (c) the requirements of this SECTION 10.7Indenture. Each Guarantor, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal unless it is the other party to the fair value thereof (transaction or unless its Guarantee will be released and discharged in accordance with its terms as determined in good faith a result of the transaction, will be required to confirm, by supplemental indenture, that its Guarantee will continue to apply to the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness obligations of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted the Surviving Entity under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7, provided that each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled; or
(1) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(i) or (b)(iii) of this SECTION 10.7 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50Indenture.
Appears in 1 contract
Samples: Indenture (Lamar Advertising Co)
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(i) any Restricted Subsidiary may consolidate with or merge into the Company or a Wholly-Owned WhollyOwned Restricted Subsidiary if the Company or a Wholly-Owned WhollyOwned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuing; and
(ii) any entity (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (x) the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f10.1(F), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (z) no Default or Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default or Event of Default shall exist and be continuing; orthe
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned WhollyOwned Restricted Subsidiary; and
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); andRestricted
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7, provided that each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled; or
(1) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(i) or (b)(iii) of this SECTION 10.7 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; andthe
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50.
Appears in 1 contract
Consolidation, Merger, Sale of Assets, etc. The Company Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly,
(ai) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(ia) any Restricted Subsidiary of the Borrower may consolidate with or merge into the Company Borrower or a Wholly-Owned Restricted Subsidiary of the Borrower if the Company Borrower or a Wholly-Owned Restricted SubsidiarySubsidiary of the Borrower, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuingPerson; and
(iib) any entity (other than a Restricted SubsidiarySubsidiary of the Borrower) may consolidate with or merge into the Company Borrower or a Wholly-Owned Restricted Subsidiary if the Company Borrower or a Wholly-Owned Restricted SubsidiarySubsidiary of the Borrower, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (xI) the Company Borrower and its Subsidiaries (1x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company Borrower most recently delivered pursuant to SECTION 7(b)Section 7A.1, of less than the Consolidated Net Worth of the Company Borrower immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3y) could incur at least $1 1.00 of additional Indebtedness in compliance with clauses Section 7B.1 and clause (i) and (iixiv) of SECTION 10.1(f)Section 7B.2, (yII) substantially all of the assets of the Company Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole, shall be located and substantially all of their business shall be conducted within the continental United States of America or Canada and (zIII) no Default or Default, Event of Default or Noncompliance Event shall exist and be continuing; and;
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default or Event of Default shall exist and be continuing; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) that any Restricted Subsidiary of the Borrower may sell, lease or otherwise dispose of all or substantially all its assets to the Company Borrower or to a Wholly-Owned Restricted Subsidiary; and
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7, provided that each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilledBorrower; or
(1iii) sell, lease, convey, abandon or otherwise dispose of (including, without limitation, in connection with a Sale and Lease-Back Transaction) any of its assets (except in a transaction permitted by subdivision clause (a)(ii)(a), (a)(iiii)(b), (b)(ii)(c), (ii)(a) or (b)(iiiii)(b) of this SECTION 10.7 Section 7B.7 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, ) or (2) issue or sell Capital Stock of any Restricted Subsidiary, in Subsidiary of the case of either clause (1) or (2) aboveBorrower, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(ia) immediately after giving effect to such proposed disposition no Default or Default, Event of Default or Noncompliance Event shall exist and be continuing; and
(ii) one , satisfaction of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed this requirement to be proceeds set forth in connection with designations reasonable detail in an Officer's Certificate delivered to each holder of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) Note at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is transaction in the form case of cashany Asset Sale involving assets that generates EBITDA and such Asset Sale involves consideration of $250,000 or more;
(b) such sale or other disposition is for cash consideration or for consideration consisting of not less than 75% cash and not more than 25% interest-bearing promissory notes; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 8075% limitation referred to in this clause (Bb) shall not apply to any Asset Sale in which consisting solely of a sale or other disposition of land and buildings for an interest bearing promissory note as long as the cash portion amount of such promissory note does not exceed $250,000;
(c) one of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not following two conditions must be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50satisfied:
Appears in 1 contract
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(i) any Restricted Subsidiary may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if if, in the case of a consolidation with or merger into the Company, the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuingor Potential Event of Default; and
(ii) any entity (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (xw) the Company (1) shall not have a Consolidated Net Worth, determined Worth (but without giving effect to any write-up in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered assets or amounts attributable to goodwill pursuant to SECTION 7(b), purchase accounting methods) of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement (2) and its Restricted Subsidiaries shall not be liable with respect to any Indebtedness or allow its property to be set forth subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement on the date of such transaction, and (3) could incur, if the consolidating or merging entity has outstanding Indebtedness, at least $1 of additional Indebtedness in reasonable detail in compliance with Section 10.1(f) after giving effect to such transaction, (x) substantially all of the assets of such entity shall be located and substantially all of its business shall be conducted within the United States of America, and (y) no condition or event shall exist which constitutes an Officers' Certificate delivered Event of Default or Potential Event of Default; and
(iii) the Company may consolidate with or merge into any other entity if (v) the surviving entity is a corporation, limited partnership, limited liability company or business trust organized and existing under the laws of the United States of America or a state thereof or the District of Columbia, with substantially all of its properties located and its business conducted within the United States of America, (w) such corporation, limited partnership, limited liability company or business trust expressly and unconditionally assumes the obligations of the Company under this Agreement and each of the other Operative Agreements and delivers to each holder of a Note at the time outstanding in connection with such assumption an opinion of counsel reasonably satisfactory to the Required Holders with respect to such matters incident to such assumption as may be reasonably requested by such holders, including, without limitation, as to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation, limited partnership, limited liability company or business trust, (x) immediately after giving effect to such transaction, such corporation, limited partnership, limited liability company or business trust (1) shall not have a Consolidated Net Worth (but without giving effect to any write-up in assets or amounts attributable to goodwill pursuant to purchase accounting methods) of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (z) no Default or Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur incur, if the consolidating or merging entity had outstanding Indebtedness, at least $1 of additional Indebtedness in compliance with clauses (iSection 10.1(f) and (ii) of SECTION 10.1(f)after giving effect to such transaction, and (zy) immediately after giving effect to such transaction no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuingor a Potential Event of Default; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted Subsidiary; and
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation corporation, limited partnership, limited liability company or limited partnership business trust into which the Company could be consolidated or merged in compliance with subdivision clause (a)(iii) of this SECTION Section 10.7, provided PROVIDED that each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled; or
(1c) sell, lease, convey, abandon or otherwise dispose of any of its assets property to any Person other than the Company or any Restricted Subsidiary (except for (x) sales, leases or other dispositions of property in a transaction transactions permitted by subdivision the foregoing clauses (a)(i), (a)(iii), (b)(ia) or (b)(iiib) of this SECTION 10.7 Section 10.7, and (y) sales or sales leasing of inventory in the ordinary course of business consistent with past practice)business) unless immediately before and after giving effect to such transaction, including by way no Event of a Sale and Lease-Back Transaction, Default or (2) issue Potential Event of Default shall exist or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unlessbe continuing and:
(i) immediately after giving effect to such proposed disposition no Default at least 70% or Event of Default shall exist and be continuing; and
(ii) one more of the following two conditions shall be satisfied:
consideration (A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 25% or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or
(B) more in the event that such Net Proceeds (consideration is less the amount thereof previously applied in accordance with this subdivision (ii)(B)than $1,000,000) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and therefor shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; providedcash consideration or marketable securities, howeverPROVIDED, that the amount of (1A) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2B) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately promptly converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for the purposes of this clause Section 10.7(c)(i), and
(Bii) either
(A) the aggregate net after-tax proceeds of all such dispositions by the Company and all Restricted Subsidiaries during the current fiscal year (including all proceeds under title insurance policies with respect to real property and all net insurance proceeds, self-insurance amounts and net awards with respect to property lost as a result of damage, destruction or a taking which have not been applied to the cost of repairing or replacing any damaged or destroyed assets), less the amount of all such net after-tax proceeds previously applied in accordance with subdivision (ii)(B) of this Section 10.7(c) and the amount of such net after-tax proceeds equal to the purchase price of any assets acquired to the extent that (1) such assets were acquired within 90 days prior to the date of such disposal of property, (2) the purchase price of such assets was not previously applied to reduce the amount of net after-tax proceeds of property disposed of under this Section 10.7(c), (3) such assets were acquired for subsequent replacement of the property so disposed of or may be productively used in the United States of America in the conduct of the Business, (4) if the assets so disposed were or should have been, then such newly acquired assets shall be subject to the Lien of the Security Documents, and (5) to the extent such assets were acquired (in whole or in part) with borrowed money, such borrowing has been repaid in full, (x) shall not exceed $7,500,000 during such fiscal year and (y) when aggregated with such net after-tax proceeds of all prior transactions under this Section 10.7(c), shall not exceed $30,000,000; and provided, further, that the 80% limitation referred to in this clause or
(B) in the event that such net after-tax proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B) and the amount thereof equal to the purchase price of any assets acquired to the extent that (1) such assets were acquired within 90 days prior to the date of such disposal of property, (2) the purchase price of such assets was not previously applied to reduce the amount of net after-tax proceeds of property disposed of under this Section 10.7(c), (3) such assets were acquired for subsequent replacement of the property so disposed of or may be productively used in the United States of America in the conduct of the Business, (4) if the assets so disposed were or should have been, then such newly acquired assets shall be subject to the Lien of the Security Documents, and (5) to the extent such assets were acquired (in whole or in part) with borrowed money, such borrowing has been repaid in full) during the current fiscal year exceed $7,500,000 or, when aggregated with such net after-tax proceeds of all prior transactions under this Section 10.7(c), exceed $30,000,000 (the larger amount of such excess net after-tax proceeds actually realized being herein called "Excess Proceeds"), the Company shall promptly pay over to the Trustee under the Trust Agreement such Excess Proceeds not apply at the time held by the Trustee for application by the Trustee (x) within 365 days of the date of the disposal or loss of property to the acquisition of assets in replacement of the property so disposed of or lost or of assets which may be used in the United States of America in the conduct of the Business (and if the assets so disposed were or should have been, then such newly acquired assets shall be subjected to the Lien of the Security Documents) or to the cost of repairing or replacing any Asset Sale damaged or destroyed assets, or (y) to the extent of Excess Proceeds not applied pursuant to the immediately preceding clause (x), to the payment and/or prepayment of the Notes and Parity Debt, if any, pursuant to Section 9.1 and/or 9.4(a), all as provided in which Section 4(d) of the cash portion Trust Agreement and such Section 9.1 and/or 9.4(a), and the Trustee shall have received an Officers' Certificate from the Managing General Partner of the Company certifying that the consideration received therefrom, for such property is at least equal to its fair value (as determined in good faith by the Managing General Partner of the Company) and that such consideration has been applied in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitationterms of this Agreement. Notwithstanding the foregoing, Asset Sales the Company and any Restricted Subsidiary may sell or dispose of (i) real property assets sold or disposed of within 12 months of the acquisition of such assets, and (ii) all other assets sold or disposed of within 6 months of the acquisition of such assets, in each case constituting a portion of an acquired business, if (y) such assets are specifically designated to the holders of the Notes in writing at the time of such acquisition or within 30 Business Days thereafter as assets to be disposed of, and (z) the Trustee shall have received an Officers' Certificate from the Managing General Partner of the Company certifying that the consideration received for such property is at least equal to its fair value (as determined in good faith by the Managing General Partner of the Company). Such sales under this paragraph will not be deemed to include applied towards the annual or cumulative limitations in subdivision (c) of this Section 10.7. In addition, notwithstanding the foregoing, the Company may, at any time, exchange assets for other like assets which may be used in the conduct of the Business, PROVIDED (1) the fair value of the assets so acquired is substantially equivalent to the fair value of the assets so exchanged (as determined in good faith by the Managing General Partner of the Company), (2) if the assets exchanged were or should have been, then such newly acquired assets shall be subject to the Lien of the Security Documents and (3) the total value of the assets so exchanged in any transfer twelve month period shall not in the aggregate exceed 15% of the total assets or issuance or sale of Capital Stock the Company. The holders of Notes agree to take all actions reasonably requested by the Company or (and at the expense of the Company) to cause dispositions of any Restricted -43- 50Collateral made in compliance with this Section 10.7 to be made free and clear of the Liens created by the Security Documents.
Appears in 1 contract
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly,:
(a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(i) any Restricted Subsidiary may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted such Subsidiary, as the case may be, shall be the surviving Person corporation and if, immediately after giving effect to such transaction, no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuing; andor Potential Event of Default;
(ii) any entity corporation (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person corporation and if, immediately after giving effect to such transaction, (x) no condition or event shall exist which constitutes an Event of Default or Potential Event of Default, and (y) substantially all of the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements assets of the Company most recently delivered pursuant shall be located and substantially all of its business shall be conducted within the United States and Canada; and
(iii) the Company may consolidate with or merge into any other corporation if (x) the surviving corporation is a corporation organized and existing under the laws of the United States of America or a state thereof or Canada, with substantially all of its assets located and substantially all of its business conducted within the United States and Canada, (y) such corporation expressly assumes, by an agreement reasonably satisfactory to SECTION 7(b)each of the Purchasers, of less than the Consolidated Net Worth obligations of the Company under this Agreement and under the Notes, and (z) immediately prior after giving effect to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of transaction (and such transaction, assumption) (2A) such corporation shall not be liable with respect to any Indebtedness Debt or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (zB) no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default or Potential Event of Default shall exist and be continuingDefault; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted Subsidiary; and;
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION section 10.7, provided that (x) each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled, and (y) no such disposition shall relieve the Company from its obligations under this Agreement or the Notes; or
(1c) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(i) or (b)(iiib) of this SECTION 10.7 or sales of inventory in the ordinary course of business consistent with past practicesection 10.7), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by except that the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations may dispose of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 obsolete or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50damaged equipment.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Perma Fix Environmental Services Inc)
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(i) any Restricted Subsidiary may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a such Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person corporation and if, immediately after giving effect to such transaction, no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuing; andor Potential Event of Default;
(ii) any entity corporation (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person corporation and if, immediately after giving effect to such transaction, (x) no condition or event shall exist which constitutes an Event of Default or Potential Event of Default, (y) substantially all of the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements assets of the Company most recently delivered pursuant shall be located and substantially all of its business shall be conducted within the United States and Canada, and (z) the Company could incur at least $1.00 of additional Debt in compliance with section 10.1(k); and
(iii) the Company may consolidate with or merge into any other corporation if (x) the surviving corporation is a corporation organized and existing under the laws of the United States of America or a state thereof or Canada, with substantially all of its assets located and substantially all of its business conducted within the United States and Canada, (y) such corporation expressly assumes, by an 26 agreement satisfactory in substance and form to SECTION 7(bthe holders of more than 50% of the Notes outstanding (subject to section 15.4) (which agreement may require the delivery in connection with such assumption of such opinions of counsel as such holders may reasonably require), of less than the Consolidated Net Worth obligations of the Company immediately prior to under this Agreement and under the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transactionNotes, (2z) immediately after giving effect to such transaction (and such assumption) (A) such corporation shall not be liable with respect to any Indebtedness Debt or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (z) no Default or Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (xB) such corporation would have Consolidated Tangible Net Worth equal to or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less greater than the Consolidated Tangible Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2C) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) corporation could incur at least $1 1.00 of additional Indebtedness Debt in compliance with clauses (isection 10.1(k) and (iiD) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuingor a Potential Event of Default; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted Subsidiary; and;
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7section 10.8, provided that (x) each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled, and (y) no such disposition shall relieve the Company from its obligations under this Agreement or the Notes; or
(1c) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(i) or (b)(iiib) of this SECTION 10.7 or sales of inventory section 10.8), except that
(i) the Company and its Subsidiaries may sell their goods in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuingbusiness; and
(ii) one the Company and its Subsidiaries may dispose of obsolete inventory and equipment in the ordinary course of business; (iii) the Company and its Subsidiaries may sell additional assets if such assets, together with all assets sold during any Reference Period, shall not constitute assets that exceed 10% of the following two conditions shall be satisfied:
lesser of (A) the aggregate Net Proceeds total assets of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during shown on the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations balance sheet of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days as of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application most recent quarter-end prior to the extent of the fair value commencement of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement Reference Period and (B) at least 80% the total assets of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as Company and its Subsidiaries shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent as of the cash received), shall be deemed to be cash for purposes last day of this clause (B)such Reference Period; and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 5027
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Dixon Ticonderoga Co)
Consolidation, Merger, Sale of Assets, etc. The Company will shall ------------------------------------------- not, and will shall not permit any Restricted Subsidiary to, directly or indirectly,:
(a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(i) any Restricted Subsidiary of the Company may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary (or any Person who, after giving effect to any such merger or consolidation would be a Subsidiary) if the Company or a Wholly-Owned Restricted such Subsidiary, as the case may be, shall be the surviving Person corporation and if, immediately after giving effect to such transaction, no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuing; andor Potential Event of Default;
(ii) any entity corporation (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person corporation and if, immediately after giving effect to such transaction, (x) substantially all the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements assets of the Company most recently delivered pursuant to SECTION 7(b)shall be - located and substantially all its business shall be conducted within the United States and Puerto Rico, of (y) the Company's Consolidated Net - Worth shall not be less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America transaction and (z) no Default condition or event - shall exist which constitutes an Event of Default shall exist and be continuingor Potential Event of Default; and
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity corporation if (w) the surviving entity corporation is a corporation or limited partnership - organized and existing under the laws of the United States of America or any a state thereof or the District of Columbiathereof, with substantially all of its properties assets located and substantially all its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of Americaand Puerto Rico, (x) such corporation or limited partnership expressly assumes, by an agreement - reasonably satisfactory in substance and unconditionally assumes form to the Required Holders (which agreement may require the delivery in connection with such assumption of such opinions of counsel as such holders may reasonably require), the obligations of the Company under this Agreement, Agreement and under the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security DocumentsNotes, (y) immediately after giving effect to such transaction- transaction (and such assumption), such corporation or limited partnership (1) the Company's Consolidated Net Worth shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of be less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after giving - effect to such transaction no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuingor a Potential Event of Default; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary of the Company may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted Subsidiary; and
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7, section 11.5; provided that (x) each of the -------- - conditions set forth in such subdivision (a)(iii) shall have been fulfilled; or
(1) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(i) or (b)(iii) of this SECTION 10.7 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during no such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), disposition shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), relieve the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of from - its obligations under this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50.
Appears in 1 contract
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly,
(ai) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(ia) any Restricted Subsidiary of the Company may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary of the Company if the Company or a Wholly-Owned Restricted SubsidiarySubsidiary of the Company, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuingPerson; and
(iib) any entity (other than a Restricted SubsidiarySubsidiary of the Company) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted SubsidiarySubsidiary of the Company, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (x) the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (z) no Default or Event of Default shall exist and be continuing; and,
(iiic) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (wI) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (xII) such corporation or limited partnership expressly and unconditionally assumes in writing the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a partyDocuments, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documentspartnership, (yIII) immediately after giving effect to such transaction, such corporation or limited partnership (1x) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(bSection 5A (or if no such financials have yet been delivered under Section 5A, consistent with the consolidated financial statements referred to in Section 8D), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and of
(ii) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default or Event of Default shall exist and be continuing; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(ia) any Restricted Subsidiary of the Company may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted SubsidiarySubsidiary of the Company; and
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iiib) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision clause (a)(iiii)(c) of this SECTION 10.7Section 6G, provided that each of the conditions set forth in such subdivision clause (a)(iiii)(c) shall have been fulfilled; or
(1iii) sell, lease, convey, abandon or otherwise dispose of (including, without limitation, in connection with a Sale and Lease-Back Transaction) any of its assets (except in a transaction permitted by subdivision clause (a)(ii)(a), (a)(iiii)(b), (b)(ii)(c), (ii)(a) or (b)(iiiii)(b) of this SECTION 10.7 Section 6G or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, ) or (2) issue or sell Capital Stock of any Restricted Subsidiary, in Subsidiary of the case of either clause (1) or (2) aboveCompany, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset SaleASSET SALE"), unless:
(ia) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing, satisfaction of this requirement to be set forth in reasonable defail in an Officer's Certificate delivered to each holder of a Note at the time of such transaction in the case of any Asset Sale involving assets that generate EBITDA and such Asset Sale involves consideration of $250,000 or more;
(b) such sale or other disposition is for cash consideration or for consideration consisting of not less than 75% cash and not more than 25% interest-bearing promissory notes; provided, that the 75% limitation referred to in this clause (b) shall not apply to any Asset Sale consisting solely of a sale or other disposition of land and
(iic) one of the following two conditions shall must be satisfied:
(AI) (x) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by over the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 immediately preceding 12-month period does not exceed $3,000,000 and (y) the aggregate Net Proceeds of dispositions all assets so disposed of shares pursuant to SECTION 10.6 (whether or -42- 49 sales not leased back) from the Closing Date through the date of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall disposition does not exceed $10,000,000 during such fiscal year10,000,000; or
(BII) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with clause (x) of this subdivision clause (ii)(Bc)(II)) during exceeds the current fiscal year exceed $10,000,000 limitations determined pursuant to clauses (x) and (y) of clause (c)(I) of this Section 6G (such excess Net Proceeds actually realized amount being herein called "Excess Sale ProceedsEXCESS SALE PROCEEDS"), the Company shall within 360 days 12 calendar months of the date of the disposal of the assets giving rise to on which such proceedsNet Proceeds exceeded any such limitation, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents)Business, or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of offer to make prepayments on the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereofSection 4C hereto and, all as provided allocated on the basis specified for such prepayments in the definition of Allocable Proceeds, to offer to repay other Parity Debt (other than Indebtedness under Section 4(c6B(ii) of the Intercreditor Agreement and or that by its terms does not permit such SECTION 9.3offer to be made); and
(iii) (Ad) the consideration received for such assets is at least equal Company shall have delivered to their aggregate fair market value (as determined in good faith by the Noteholders a Certificate of the Board of Directors of the General Partner) at the time of such disposition and , certifying that such consideration has been applied sale or other disposition is being held for application in accordance with the terms of this Agreement fair value and (B) at least 80% of the consideration therefor received is in the form best interests of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50of its Subsidiaries to the Company or a Wholly-Owned Subsidiary of the Company, (2) any transfer of assets or issuance or sale of Capital Stock by the Company or any of its Subsidiaries to any Person in exchange for, or the Net Proceeds of which are applied within 12 months to the purchase of, other assets used in a line of business permitted under Section 6H and having a fair market value (as determined in good faith by the
Appears in 1 contract
Samples: Note Purchase Agreement (Heritage Propane Partners L P)
Consolidation, Merger, Sale of Assets, etc. The Company will not, in any transaction or series of transactions, merge or consolidate with or into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets as an entirety to, any Person or Persons, and the Company will not permit any Restricted Subsidiary toof its Subsidiaries to enter into any such transaction or series of transactions if such transaction or series of transactions, directly in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or indirectly,
(a) consolidate with other disposition of all or merge into substantially all of the properties and assets of the Company and its Subsidiaries, taken as a whole, to any other Person or permit any other Person to consolidate with or merge into itPersons, except thatunless:
(i) either (a) (1) if the transaction or transactions is a merger or consolidation involving the Company, the Company shall be the surviving Person of such merger or consolidation, or (2) if the transaction or transactions is a merger or consolidation involving a Subsidiary of the Company, such Subsidiary shall be the surviving Person of such merger or consolidation and such surviving Person shall be a Subsidiary of the Company, or (b) (1) the Person formed by any Restricted Subsidiary may consolidate with such consolidation or merge into which the Company or a Wholly-Owned Restricted such Subsidiary if is merged or to which the properties and assets of the Company or a Wholly-Owned Restricted and/or such Subsidiary, as the case may be, are transferred (any such surviving Person or transferee Person being a "Surviving Entity") shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuing; and
(ii) any entity (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (x) the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (z) no Default or Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or America, any state thereof or the District of ColumbiaColumbia and (2)(A) in the case of a transaction involving the Company, with substantially all of its properties located the Surviving Entity shall expressly assume by a supplemental indenture executed and its business conducted (without giving effect delivered to the properties owned byTrustee, and in form satisfactory to the business conducted byTrustee, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes all the obligations of the Company under the Securities and this AgreementIndenture, and, in each case, this Indenture shall remain in full force and effect, or (B) in the case of a transaction involving a Subsidiary that is a Guarantor, the Notes Surviving Entity shall expressly assume by a supplemental indenture executed and delivered to the other Financing Documents to which the Company is a partyTrustee, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably in form satisfactory to the Required Holders with respect to Trustee, all the due authorization and execution of the related agreement of assumption and the enforceability obligations of such agreement against Subsidiary under its Guarantee and related supplemental indenture, and, in each case, such corporation or partnership Guarantee and the continued effectiveness supplemental indenture shall remain in full force and priority of the Liens of the Security Documents, effect;
(yii) immediately after giving effect to such transaction, such corporation related transaction or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied series of transactions on a pro forma basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b)(including, of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction--- ----- without limitation, satisfaction of this requirement any Indebtedness incurred or anticipated to be set forth incurred in reasonable detail connection with or in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 or series of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(ftransactions), no Default shall have occurred and be continuing;
(ziii) immediately after giving effect to such transaction no Default or Event series of Default shall exist and transactions on a pro forma basis (including, without --- ----- limitation, any Indebtedness incurred or anticipated to be continuing; or
(b) sellincurred in connection with or in respect of such transaction or series of transactions), lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or the Surviving Entity, as the case may be, could incur $1.00 of additional Indebtedness pursuant to a Wholly-Owned Restricted Subsidiarythe proviso to the first paragraph of clause (a) of Section 4.8; and
(iiiv) subject the Company shall deliver, or cause to compliance be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, transfer, lease, assignment or other disposition and the supplemental indenture in respect thereof comply with clause (c) the requirements of this SECTION 10.7Indenture. Each Guarantor, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal unless it is the other party to the fair value thereof (transaction or unless its Guarantee will be released and discharged in accordance with its terms as determined in good faith a result of the transaction, will be required to confirm, by supplemental indenture, that its Guarantee will continue to apply to the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness obligations of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted the Surviving Entity under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7, provided that each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled; or
(1) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(i) or (b)(iii) of this SECTION 10.7 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50Indenture.
Appears in 1 contract
Samples: Indenture (Oci N Corp)
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(i) any Restricted Subsidiary may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuing; and
(ii) any entity (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (x) the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(bSection 7.1 (b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note the Agent at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 Section 8.1 or 10.28.3) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (z) no Default or Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2Section 11.1, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of ColumbiaColumbia or Canada, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of Americaand Canada, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Loan Documents and License Agreements to which the Company is a party, and delivers to each holder of a Note at the time outstanding Agent an opinion of counsel reasonably satisfactory to the Required Holders Banks with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(bSection 7.1(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note the Agent at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 Section 8.1 or 10.28.3) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(fSection 8.1(f), and (z) immediately after giving effect to such transaction no Default or Event of Default shall exist and be continuing; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted Subsidiary; and
(ii) subject to compliance with clause (c) of this SECTION 10.7Section 8.8, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of -84- 92 the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(cSection 8.1 (other than Section 8.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary), in which case such Indebtedness need not be subject to the subordination provisions required by Section 8.1(c) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 Section 8.7 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(fSection 8.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7Section 8.8, provided that each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled; or
(1) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(i) or (b)(iii) of this SECTION 10.7 Section 8.8 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of the Company or any Subsidiary (other than to the Company or a Wholly-Owned Restricted Subsidiary), in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition disposition, no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and Section 7.13, (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 Section 8.7 or -42- 49 sales of assets pursuant to SECTION 10.7(bSection 8.8(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(cSection 8.8(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; andan
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the Board of Directors of the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the NotesLoans) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, provided further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary, (2) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted Subsidiary to any Person in exchange for other assets used in a line of business permitted under Section 7.4(c) and having a fair market value (as determined in good faith by the General Partner) not less than that of the assets so transferred or Capital Stock so issued or sold (so long as such assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents) and (3) any transfer of assets pursuant to an Investment permitted by Section 8.4.
Appears in 1 contract
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(i) any Restricted Subsidiary may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a such Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person corporation and if, immediately after giving effect to such transaction, no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuing; andor Potential Event of Default;
(ii) any entity corporation (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person corporation and if, immediately after giving effect to such transaction, (x) no condition or event shall exist which constitutes an Event of Default or Potential Event of Default, (y) substantially all of the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements assets of the Company most recently delivered pursuant shall be located and substantially all of its business shall be conducted within the United States, Canada and Mexico (subject to SECTION 7(bsection 10.17), and (z) the Company could incur at least $1.00 of less additional Debt in compliance with section 10.1;
(iii) any corporation may consolidate with or merge into any Subsidiary, or any Subsidiary may consolidate with or merge into another corporation, if the surviving corporation shall be a Wholly-Owned Subsidiary following the consolidation or merger, and if, immediately after giving effect to the transaction, (x) no condition or event shall exist which constitutes an Event of Default or Potential Event of Default, (y) substantially all of the assets of such Wholly-Owned Subsidiary shall be located and substantially all of its business shall be conducted within the United States, Canada and Mexico (subject to section 10.17), and (z) the Company could incur at least $1.00 of additional Debt in compliance with section 10.1; and
(iv) the Company may consolidate with or merge into any other corporation if (x) the surviving corporation is a corporation organized and existing under the laws of the United States of America or a state thereof or Canada, with substantially all of its assets located and substantially all of its business conducted within the United States, Canada and Mexico (subject to section 10.17), (y) such corporation expressly assumes, by an agreement satisfactory in substance and form to the holders of more than 60% of the Consolidated Net Worth Notes outstanding (subject to section 15.4) (which agreement may require the delivery in connection with such assumption of such opinions of counsel as such holders may reasonably require), the obligations of the Company immediately prior to under this Agreement and under the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transactionNotes, (2z) immediately after giving effect to such transaction (and such assumption)
(a) such corporation shall not be liable with respect to any Indebtedness Debt or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3b) such corporation could incur at least $1 1.00 of additional Indebtedness Debt in compliance with clauses (i) section 10.1 and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (zc) no Default condition or event shall exist which constitutes an Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default or Potential Event of Default shall exist and be continuingDefault; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted Subsidiary; and;
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iiia)(iv) of this SECTION section 10.7, provided PROVIDED that (x) each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled, and (y) no such disposition shall relieve the Company from its obligations under this Agreement or the Notes; or
(1c) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(ib) or (b)(iiid) of this SECTION 10.7 or sales section 10.7), except that (i) the Company and its Subsidiaries may sell their goods in the ordinary course of inventory business, (ii) the Company and its Subsidiaries may dispose of obsolete equipment in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, (iii) the Company may sell the capital stock or (2) issue all or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each substantially all of the foregoing non-excepted transactionsassets of its Subsidiary Aspen Consulting, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal yearInc.; or
(Bd) in the event enter into, or permit any of its Subsidiaries to enter into, any sale and leaseback transaction; provided that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of may enter into a sale and leaseback transaction if (i) the date of the disposal of the assets giving rise Company could have (a) incurred Debt pursuant to such proceeds, cause section 10.1 in an amount equal to the capitalized amount in respect of such Excess Sale Proceeds to be applied (with transaction that would appear on the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent balance sheet of the fair value of Company in accordance with generally accepted accounting principles relating to such Restricted Subsidiary as determined in good faith by the General Partnersale and leaseback transaction and (b) (x) incurred a Lien to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and secure such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied Debt pursuant to the immediately preceding clause (x), to the prepayment provisions of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 section 10.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (Aii) the consideration received for gross cash proceeds of such assets is sale and leaseback transaction are at least equal to their aggregate the fair market value (as determined in good faith by the General Partner) at Board of Directors and set forth in an Officers' Certificate delivered to the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% holders of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes theretoNotes) of the Company or any Restricted Subsidiary (other than liabilities property that are by their terms subordinated in right is the subject of payment to the Notes) that are assumed by the transferee of any such assets sale and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50leaseback transaction.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Eco Soil Systems Inc)
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly,
(ai) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(ia) any Restricted Subsidiary of the Company may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary of the Company if the Company or a Wholly-Owned Restricted SubsidiarySubsidiary of the Company, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuingPerson; and
(iib) any entity (other than a Restricted SubsidiarySubsidiary of the Company) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted SubsidiarySubsidiary of the Company, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (xI) the Company and its Subsidiaries (1x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(bSection 5A, of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, and (y) could incur at least $1.00 of additional Indebtedness in compliance with Section 6A and clause (xiii) of Section 6B; (II) substantially all of the assets of the Company and its Subsidiaries, taken as a whole, shall be located and substantially all of their business shall be conducted within the continental United States of America or Canada; and (III) no Default or Event of Default shall exist and be continuing; and
(c) the Company may consolidate with or merge into any other entity if (I) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or -29- 35 the District of Columbia, with substantially all of its properties located and its business conducted within the continental United States of America, (II) such corporation or limited partnership expressly and unconditionally assumes in writing the obligations of the Company under this Agreement, the Notes and the other Financing Documents and delivers to each holder of a Note at the time outstanding an opinion of counsel satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership, (III) immediately after giving effect to such transaction, such corporation or limited partnership (x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to Section 5A (or if no such financials have yet been delivered under Section 5A, consistent with the consolidated financial statements referred to in Section 8D), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3y) could incur at least $1 1.00 of additional Indebtedness in compliance with clauses Section 6A and clause (ixiii) of Section 6B, and (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and (zIV) no Default or Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with continuing immediately before or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default or Event of Default shall exist and be continuing; or
(bii) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(ia) any Restricted Subsidiary of the Company may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted SubsidiarySubsidiary of the Company; and
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iiib) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision clause (a)(iiii)(c) of this SECTION 10.7Section 6G, provided that each of the conditions set forth in such subdivision clause (a)(iiii)(c) shall have been fulfilled; or
(1iii) sell, lease, convey, abandon or otherwise dispose of (including, without limitation, in connection with a Sale and Lease-Back Transaction) any of its assets (except in a transaction permitted by subdivision clause (a)(ii)(a), (a)(iiii)(b), (b)(ii)(c), (ii)(a) or (b)(iiiii)(b) of this SECTION 10.7 Section 6G or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, ) or (2) issue or sell Capital Stock of any Restricted Subsidiary, in Subsidiary of the case of either clause (1) or (2) aboveCompany, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted nonexcepted transactions, an "Asset Sale"), unless:
(ia) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing; and, satisfaction of this
(iib) such sale or other disposition is for cash consideration or for consideration consisting of not less than 75% cash and not more than 25% interest-bearing promissory notes; provided, that the 75% limitation referred to in this clause (b) shall not apply to any Asset Sale consisting solely of a sale or other disposition of land and buildings for an interest bearing promissory note as long as the amount of such promissory note does not exceed $250,000;
(c) one of the following two conditions shall must be satisfied:
(AI) (x) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by over the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 immediately preceding 12-month period does not exceed $3,000,000 and (y) the aggregate Net Proceeds of dispositions all assets so disposed of shares pursuant to SECTION 10.6 (whether or -42- 49 sales not leased back) from the Initial Closing Date through the date of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall disposition does not exceed $10,000,000 during such fiscal year10,000,000; or
(BII) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with clause (x) of this subdivision clause (ii)(Bc)(II)) during exceeds the current fiscal year exceed $10,000,000 limitations determined pursuant to clauses (x) and (y) of clause (c)(I) of this Section 6G (such excess Net Proceeds actually realized amount being herein called "Excess Sale Proceeds"), the Company shall within 360 days 12 calendar months of the date of the disposal of the assets giving rise to on which such proceedsNet Proceeds exceeded any such limitation, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents)Business, or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of offer to make prepayments on the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereofSection 4C hereto and, all as provided allocated on the basis specified for such prepayments in the definition of Allocable Proceeds, to offer to repay other Parity Debt (other than Indebtedness under Section 4(c6B(ii) of the Intercreditor Agreement and or that by its terms does not permit such SECTION 9.3offer to be made); and
(iii) (Ad) the consideration received for such assets is at least equal Company shall have delivered to their aggregate fair market value (as determined in good faith by the Noteholders a Certificate of the Board of Directors of the General Partner) at the time of such disposition and , certifying that such consideration has been applied sale or other disposition is being held for application in accordance with the terms of this Agreement fair value and (B) at least 80% of the consideration therefor received is in the form best interests of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50of its Subsidiaries to the Company or a Wholly-Owned Subsidiary of the Company, (2) any transfer of assets or issuance or sale of Capital Stock by the Company or any of its Subsidiaries to any Person in
Appears in 1 contract
Samples: Note Purchase Agreement (Heritage Propane Partners L P)
Consolidation, Merger, Sale of Assets, etc. The Company Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly,
(ai) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(ia) any Restricted Subsidiary of the Borrower may consolidate with or merge into the Company Borrower or a Wholly-Owned Restricted Subsidiary of the Borrower if the Company Borrower or a Wholly-Owned Restricted SubsidiarySubsidiary of the Borrower, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuingPerson; and
(iib) any entity (other than a Restricted SubsidiarySubsidiary of the Borrower) may consolidate with or merge into the Company Borrower or a Wholly-Owned Restricted Subsidiary if the Company Borrower or a Wholly-Owned Restricted SubsidiarySubsidiary of the Borrower, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (xi) the Company Borrower and its Subsidiaries (1x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company Borrower most recently delivered pursuant to SECTION 7(b)Section 7A.1, of less than the Consolidated Net Worth of the Company Borrower immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3y) could incur at least $1 1.00 of additional Indebtedness in compliance with clauses Section 7B.1 and clause (ixiv) and of Section 7B.2, (ii) of SECTION 10.1(f), (y) substantially all of the assets of the Company Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole, shall be located and substantially all of their business shall be conducted within the continental United States of America or Canada and (ziii) no Default or Default, Event of Default or Noncompliance Event shall exist and be continuing; and;
(iii) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default or Event of Default shall exist and be continuing; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) that any Restricted Subsidiary of the Borrower may sell, lease or otherwise dispose of all or substantially all its assets to the Company Borrower or to a Wholly-Owned Restricted Subsidiary; and
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7, provided that each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilledBorrower; or
(1iii) sell, lease, convey, abandon or otherwise dispose of (including, without limitation, in connection with a Sale and Lease-Back Transaction) any of its assets (except in a transaction permitted by subdivision clause (a)(ii)(a), (a)(iiii)(b), (b)(ii)(c), (ii)(a) or (b)(iiiii)(b) of this SECTION 10.7 Section 7B.7 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, ) or (2) issue or sell Capital Stock of any Restricted Subsidiary, in Subsidiary of the case of either clause (1) or (2) aboveBorrower, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(ia) immediately after giving effect to such proposed disposition no Default or Default, Event of Default or Noncompliance Event shall exist and be continuing; and
(ii) one , satisfaction of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed this requirement to be proceeds set forth in connection with designations reasonable detail in an Officer's Certificate delivered to each holder of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) Note at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is transaction in the form case of cashany Asset Sale involving assets that generates EBITDA and such Asset Sale involves consideration of $250,000 or more;
(b) such sale or other disposition is for cash consideration or for consideration consisting of not less than 75% cash and not more than 25% interest-bearing promissory notes; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 8075% limitation referred to in this clause (Bb) shall not apply to any Asset Sale in which consisting solely of a sale or other disposition of land and buildings for an interest bearing promissory note as long as the cash portion amount of such promissory note does not exceed $250,000;
(c) one of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not following two conditions must be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50satisfied:
Appears in 1 contract
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(i) any Restricted Subsidiary may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuing; and
(ii) any entity (other than a Restricted Subsidiary) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (x) the Company (1) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(bSection 7.1(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note the Agent at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 Section 8.1 or 10.28.3) on the date of such transaction, and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(fSection 8.1(f), (y) substantially all of the assets of the Company and its Restricted Subsidiaries shall be located and substantially all of their business shall be conducted within the continental United States of America and Canada and (z) no Default or Event of Default shall exist and be continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2Section 11.1, the Company may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the District of ColumbiaColumbia or Canada, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of Americaand Canada, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Company under this Agreement, the Notes and the other Financing Loan Documents and License Agreements to which the Company is a party, and delivers to each holder of a Note at the time outstanding Agent an opinion of counsel reasonably satisfactory to the Required Holders Banks with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documents, (y) immediately after giving effect to such transaction, such corporation or limited partnership (1) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(bSection 7.1(b), of less than the Consolidated Net Worth of the Company immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note the Agent at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 Section 8.1 or 10.28.3) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(fSection 8.1(f), and (z) immediately after giving effect to such transaction no Default or Event of Default shall exist and be continuing; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted Subsidiary; and
(ii) subject to compliance with clause (c) of this SECTION 10.7Section 8.8, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(cSection 8.1 (other than Section 8.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary), in which case such Indebtedness need not be subject to the subordination provisions required by Section 8.1(c) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision subsection (b)(ii) or the proviso of SECTION 10.6 Section 8.7 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(fSection 8.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision subsection (a)(iii) of this SECTION 10.7Section 8.8, provided provided, that each of the conditions set forth in such subdivision subsection (a)(iii) shall have been fulfilled; or
(1) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision subsection (a)(i), (a)(iii), (b)(i) or (b)(iii) of this SECTION 10.7 Section 8.8 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of the Company or any Subsidiary (other than to the Company or a Wholly-Owned Restricted Subsidiary), in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition disposition, no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and Section 7.13, (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 Section 8.7 or -42- 49 sales of assets pursuant to SECTION 10.7(bSection 8.8(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision subsection (ii)(B) of this SECTION 10.7(cSection 8.8(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision subsection (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes Obligations and Parity Debt, if any, pursuant to SECTION 9.3 Section 2.7(a) hereof, all as provided in Section 4(c) of the Intercreditor Collateral Agency Agreement and such SECTION 9.3Section 2.7(a); and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the Board of Directors of the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the NotesLoans) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary, (2) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted Subsidiary to any Person in exchange for other assets used in a line of business permitted under Section 7.4(c) and having a fair market value (as determined in good faith by the General Partner) not less than that of the assets so transferred or Capital Stock so issued or sold (so long as such assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents) and (3) any transfer of assets pursuant to an Investment permitted by Section 8.4.
Appears in 1 contract
Consolidation, Merger, Sale of Assets, etc. The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly,
(ai) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it, except that:
(ia) any Restricted Subsidiary of the Company may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary of the Company if the Company or a Wholly-Owned Restricted SubsidiarySubsidiary of the Company, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, no Default or Event of Default shall exist and be continuingPerson; and
(iib) any entity (other than a Restricted SubsidiarySubsidiary of the Company) may consolidate with or merge into the Company or a Wholly-Owned Restricted Subsidiary if the Company or a Wholly-Owned Restricted SubsidiarySubsidiary of the Company, as the case may be, shall be the surviving Person and if, immediately after giving effect to such transaction, (xI) the Company and its Subsidiaries (1x) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(b)Section 5A, of less than the Consolidated Net Worth of the Company and its Subsidiaries immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Officer's Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction, and (3y) could incur at least $1 1.00 of additional Indebtedness in compliance with clauses Section 6A and clause (i) and (iixiii) of SECTION 10.1(f)Section 6B, (yII) substantially all of the assets of the Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, shall be located and substantially all of their business shall be conducted within the continental United States of America or Canada, and (zIII) no Default or Event of Default shall exist and be continuing; and
(iiic) subject to compliance with the provisions of SECTION 18.2, the Company may consolidate with or merge into any other entity if (wI) the surviving entity is a corporation or limited partnership organized and existing under the laws of the United States of America or any state thereof or the the. District of Columbia, with substantially all of its properties located and its business conducted (without giving effect to the properties owned by, and the business conducted by, Unrestricted Subsidiaries) within the continental United States of America, (xII) such corporation or limited partnership expressly and unconditionally assumes in writing the obligations of the Company under this Agreement, the Notes and the other Financing Documents to which the Company is a party, and delivers to each holder of a Note at the time outstanding an opinion of counsel reasonably satisfactory to the Required Holders with respect to the due authorization and execution of the related agreement of assumption and the enforceability of such agreement against such corporation or partnership and the continued effectiveness and priority of the Liens of the Security Documentspartnership, (yIII) immediately after giving effect to such transaction, such corporation or limited partnership (1x) shall not have (without giving effect to Unrestricted Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the consolidated financial statements of the Company most recently delivered pursuant to SECTION 7(bSection 5A (or if no such financials have yet been delivered under Section 5A, consistent with the consolidated financial statements referred to in Section 8D), of less than the Consolidated Net Worth of the Company and its Subsidiaries immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Officer's Certificate delivered to each holder of a Note at the time of such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement (including without limitation under SECTION 10.1 or 10.2) on the date of such transaction and (3y) could incur at least $1 1.00 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after giving effect to such transaction no Default or Event of Default shall exist and be continuing; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except that:
(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to the Company or to a Wholly-Owned Restricted Subsidiary; and
(ii) subject to compliance with clause (c) of this SECTION 10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as determined in good faith by the General Partner) at the time of such sale if (x) the assets being so sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Company or any other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under SECTION 10.1, in which case such Indebtedness need not be subject to the subordination provisions required by SECTION 10.1(c) so long as such Indebtedness is held by a Person other than the Company or a Restricted Subsidiary) or (B) any stock of or other equity interest in any other Restricted Subsidiary which is not also being simultaneously sold as an entirety in compliance with this subdivision (b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such transaction and immediately after giving effect thereto, the Company could incur at least $1 of additional Indebtedness in compliance with clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which the Company could be consolidated or merged in compliance with subdivision (a)(iii) of this SECTION 10.7, provided that each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled; or
(1) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a transaction permitted by subdivision (a)(i), (a)(iii), (b)(i) or (b)(iii) of this SECTION 10.7 or sales of inventory in the ordinary course of business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or (2) issue or sell Capital Stock of any Restricted Subsidiary, in the case of either clause (1) or (2) above, whether in a single transaction or a series of related transactions (each of the foregoing non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of (whether or not leased back) by the Company and its Restricted Subsidiaries during the current fiscal year (including (x) amounts deemed to be proceeds in connection with designations of Restricted Subsidiaries as Unrestricted Subsidiaries during such fiscal year under SECTION 10.21 and (y) Net Proceeds of dispositions of shares pursuant to SECTION 10.6 or -42- 49 sales of assets pursuant to SECTION 10.7(b)), less the amount of all Net Proceeds of prior dispositions of assets during such fiscal year previously applied in accordance with subdivision (ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000 during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount thereof previously applied in accordance with this subdivision (ii)(B)) during the current fiscal year exceed $10,000,000 (such excess Net Proceeds actually realized being herein called "Excess Sale Proceeds"), the Company shall within 360 days of the date of the disposal of the assets giving rise to such proceeds, cause an amount equal to such Excess Sale Proceeds to be applied (with the designation of an Unrestricted Subsidiary as a Restricted Subsidiary being deemed to be such an application to the extent of the fair value of such Restricted Subsidiary as determined in good faith by the General Partner) (x) to the acquisition of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States of America or Canada in the conduct of the Business (and such newly acquired assets shall become part of the General Collateral and shall be subjected to the Lien of the Security Documents), or (y) to the extent not applied pursuant to the immediately preceding clause (x), to the prepayment of the Notes and Parity Debt, if any, pursuant to SECTION 9.3 hereof, all as provided in Section 4(c) of the Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least equal to their aggregate fair market value (as determined in good faith by the General Partner) at the time of such disposition and that such consideration has been applied or is being held for application in accordance with the terms of this Agreement and (B) at least 80% of the consideration therefor received is in the form of cash; provided, however, that the amount of (1) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets and (2) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this clause (B); and provided, further, that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or issuance or sale of Capital Stock by the Company or any Restricted -43- 50with
Appears in 1 contract
Samples: Note Purchase Agreement (Heritage Propane Partners L P)
