Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except: (i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person; (b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary; (c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such disposition; and (d) as set forth on Schedule 7.02.
Appears in 4 contracts
Samples: Credit Agreement (Fidelity National Financial, Inc.), Term Loan Credit Agreement (Fidelity National Financial, Inc.), Credit Agreement (Fidelity National Financial, Inc.)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, and the Borrower or the applicable Subsidiary shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such dispositionWorth; and
(d) as set forth on Schedule 7.02.
Appears in 3 contracts
Samples: Credit Agreement (Fidelity National Financial, Inc.), Credit Agreement (Fidelity National Title Group, Inc.), Credit Agreement (Fidelity National Title Group, Inc.)
Consolidations and Mergers; Sales of Assets. The Borrower Company shall not, and shall not permit allow any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding receivables and Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(ia) any Subsidiary may merge with the Borrower; Company (provided that the Borrower Company shall be the continuing or surviving Person), or with any one or more Subsidiaries; Subsidiaries (provided that that, if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned SubsidiarySubsidiary is a party to said merger, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any if neither Subsidiary may merge with any other Person; provided that such party to said merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the BorrowerWholly-Owned Subsidiary, the Borrower Subsidiary of which the Company owns directly or indirectly the highest percentage shall be the continuing or surviving Person);
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or another Subsidiary that is a direct or indirect Wholly-Owned Subsidiary;
(c) the Borrower Company or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (Ai) of portfolio Investments in the ordinary course of its business at fair market value, (Bii) of obsolete, worn-out or surplus property property, and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (Ciii) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds net proceeds thereof are applied to the purchase of such replacement property within 90 180 days or the Commitments shall be reduced within 180 days by the amount of such sale; net proceeds and any outstanding Loans in excess of such reduced Commitments shall be simultaneously repaid.
(Dd) ordinary course dispositions of inventorythe Company or any Subsidiary may merge with another Person, if the Company or such Subsidiary shall be the surviving Person, to accomplish a Permitted Acquisition;
(Ee) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code Company or any Insurance Subsidiary may enter into Reinsurance Agreements in the ordinary course of business; (G) dispositions , so long as the net proceeds of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract any Reinsurance Agreements are reinvested in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower Company and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such dispositionwithin 180 days;
(f) Subsidiaries, other than Material Subsidiaries, may be dissolved or liquidated; and
(dg) other sales of assets at fair market value the proceeds of which shall not exceed $50,000,000 in any fiscal year so long as set forth on Schedule 7.02the net proceeds of such sale are reinvested in the business of the Company and its Subsidiaries within 180 days or the Commitments shall be reduced within 180 days by the amount of such net proceeds and any outstanding Loans in excess of such reduced Commitments shall be simultaneously repaid.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Unumprovident Corp), Credit Agreement (Unumprovident Corp)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit allow any of its Restricted Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding receivables and Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(ia) any Restricted Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Restricted Subsidiaries; provided that if any transaction shall be between a Restricted Subsidiary and a Restricted Subsidiary that is a Wholly-Owned Subsidiary, the Restricted Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Restricted Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary that is a Wholly-Owned Subsidiary;
(c) the Borrower or any Restricted Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (Ai) of portfolio Investments in the ordinary course of its business at fair market value, (Bii) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiariesproperty, (Ciii) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are promptly applied to the purchase of such replacement property within 90 days of such saleproperty; (D) ordinary course dispositions of inventory, (Eiv) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Restricted Subsidiaries; (Fv) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (Gvi) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; and (Hvii) a voluntary termination other Dispositions of a Swap Contract; assets and properties since the Effective Date with an aggregate fair market value of $10,000,000;
(Id) leases, subleases, licenses or sublicenses Dispositions of property in properties directly related to the ordinary course consolidation of business and which do not materially interfere the Company with the business Borrower (including Dispositions of real estate owned by the Company) set forth on Schedule 8.2 for fair market value; provided that (i) together with its delivery of the Compliance Certificate, the Borrower shall provide the Administrative Agent with a status update as to such dispositions and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereofproceeds received to such date, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted the Borrower shall have complied with all the requirements of Section 3.3(a), if and to be sold, leased, conveyed or disposed of in the extent the Net Disposition Proceeds from all dispositions made pursuant to this clause (id) immediately precedingexceeds $25,000,000, provided that and (Aiii) after $25,000,000 in Net Disposition Proceeds have been received by the Borrower and/or its Restricted Subsidiaries pursuant to this clause (d), the consideration for all further dispositions shall comprise at least 50% cash; and
(e) so long as no Default or Event of Default shall have occurred or and be continuing or would occur after giving effect thereto, the Borrower or any Restricted Subsidiary may sell, lease, convey or otherwise dispose of any other assets in any transaction that constitutes a Disposition; provided that the Borrower complies with all the requirements of Section 3.3(a); and provided, further, that (Bi) all of such dispositions shall be for fair market value, (ii) at least 50% of the consideration received for such dispositions shall be cash and (Ciii) the aggregate fair market value of all assets so disposed of from and after the Effective Date pursuant to this clause (iie) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of $10,000,000 in any Fiscal Year or $60,000,000 in the end of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02aggregate since the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial Inc /De/)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries Subsidiary to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) be a party to any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing merger or surviving Personconsolidation, except that, so long as no Default or with any one Event of Default then exists or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiarywould exist immediately after giving effect thereto or would result therefrom, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (iiA) the Borrower or any Subsidiary may merge with any other Person; , provided that the Borrower is the survivor of such merger and is consummated as part a Domestic corporation, and (B) any Wholly-Owned Subsidiary of a Permitted Acquisition and, in the case Borrower may merge or consolidate into the Borrower or with or into any other Wholly-Owned Subsidiary of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(bii) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct substantially all of the business assets of the Borrower and its Subsidiaries, taken as a whole, whether in one transaction or a series of transactions;
(Ciii) a sell, transfer, convey or lease the Principal Properties other than in connection with any Permitted Lien granted thereon pursuant to Section 7.01(a)(v) and other than the sale of property all or any portion of the Principal Properties pursuant to one or more Dispositions permitted pursuant to clause (v) of this subsection 7.01(b);
(iv) sell, transfer, assign or convey (other than any disposition to the extent such property is exchanged for credit against Borrower or any Wholly-Owned Subsidiary) any shares of capital stock or other equity interests in any Subsidiary that, at the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days time of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution transfer, assignment or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leasesconveyance, subleases, licenses directly or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that indirectly either (A) no Default owns, leases or Event has material contract rights in respect of Default shall have occurred any Principal Property or be continuing or would occur after giving effect thereto, (B) all is a party to a Key Contract; or
(v) sell, transfer, assign or convey any assets or any shares of capital stock of or other equity interests in any Subsidiary (collectively, a "Disposition") if, on the day on which such dispositions shall be for fair market valueproposed Disposition is to occur, and (C) the aggregate book value (at the time of the proposed disposition thereof) of such assets, shares or equity interests (as the case may be), when added to the aggregate book value (at the time or times of the disposition thereof) of all assets other assets, shares or equity interests disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during under this clause (v) on or after the term of this Agreement shall not exceed 25Closing Date exceeds 20% of Net Worth the aggregate book value of the assets of the Borrower and its Subsidiaries as of the end date of the most recent balance sheet of the Borrower delivered pursuant to Section 6.01(a) or (b); provided that, if concurrently with any Disposition made pursuant to this clause (v) or within one year thereof, all or substantially all of the net proceeds of such Disposition are either
(A) reinvested (whether by acquisition, improvement, repair, construction or otherwise) in assets related to the business of the Borrower or any Subsidiary, or
(B) applied (1) prior to the Stated Maturity Date to repay Loans and reduce the Aggregate Commitment (it being understood that the Borrower will repay Loans hereunder in such principal amount such that the aggregate principal amount of all Loans hereunder does not exceed the Aggregate Commitment hereunder as so reduced), and (2) subsequent to the Stated Maturity Date, repay the amount then outstanding under the Term Loans, or
(C) applied ratably (1) in the manner set forth in clause (B) above and (2) to repay Loans under the Three-Year Credit Agreement and reduce the Aggregate Commitment (as defined in the Three-Year Credit Agreement) pursuant to the Three-Year Credit Agreement (it being understood that the Borrower will repay Loans and L/C Borrowings thereunder in such principal amount as is required such that the sum of the Outstanding Amount of all Loans thereunder, whether Committed Loans, Swing Line Loans or Bid Loans, plus the Outstanding Amount of all Letter of Credit Obligations outstanding after such repayment does not exceed the Aggregate Commitment thereunder as so reduced), or
(D) applied ratably (1) in the manner specified in clause (B) above and (2) to repay other Indebtedness then outstanding (other than Indebtedness which is subordinated to the Obligations) (including Indebtedness evidenced by the Loans made pursuant to the Three-Year Credit Agreement, the Private Placement Notes and the Senior Notes), then such Disposition shall be disregarded for purposes of calculations pursuant to this clause (v) from and after the time of such reinvestment or application. Nothing in this Section 7.01(b) shall prohibit the Borrower or any Wholly-Owned Subsidiary from purchasing or otherwise acquiring the assets or stock of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02Wholly-Owned Subsidiary.
Appears in 1 contract
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding receivables and Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(ia) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;; and
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiariesproperty, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are promptly applied to the purchase of such replacement property within 90 days of such saleproperty; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (FE) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (GF) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; or (HG) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during (excluding the term FIS Recapitalization Transaction and any additional disposition of this Agreement common Equity Interests of FIS) shall not exceed (A) 25% of Net Worth (determined as of the end last day of any fiscal quarter the immediately preceding Fiscal Year) in any Fiscal Year other than Fiscal Year 2005 or (B) 15% of Net Worth in Fiscal Year 2005, and (D) such disposition; and, if to FIS or any of its subsidiaries, would be an investment or acquisition otherwise permitted to be made by FIS or any of its subsidiaries under the FIS Credit Agreement.
(dh) Section 7.03 of the Credit Agreement is hereby amended to read as set forth on Schedule 7.02.follows:
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial Inc /De/)
Consolidations and Mergers; Sales of Assets. The Borrower Company shall not, and shall not permit any of its Subsidiaries Restricted Subsidiary to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) be a party to any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing merger or surviving Personconsolidation, except that, so long as no Default then exists or with any one would exist immediately after giving effect thereto or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiarywould result therefrom, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (iiA) the Borrower or any Subsidiary Company may merge with any other Person; , provided that the Company is the survivor of such merger is consummated as part merger, and (B) any Wholly-Owned Restricted Subsidiary of a Permitted Acquisition and, in the case Company may merge or consolidate into the Company or with or into any other Wholly-Owned Restricted Subsidiary of any merger involving the Borrower, the Borrower shall be the continuing or surviving PersonCompany;
(bii) sell, transfer, convey or lease the Principal Properties other than in connection with any Subsidiary may sell Permitted Lien granted thereon, and other than the sale of all or any part portion of its assets the Principal Properties pursuant to one or more Dispositions permitted pursuant to clause (upon voluntary liquidation iv) of this subsection 8.1(b) or otherwise) one or more Sale Leaseback Transactions permitted pursuant to the Borrower or another Subsidiary that is a Wholly-Owned SubsidiarySection 8.1(g);
(ciii) sell, transfer, assign or convey (other than in connection with any Permitted Lien granted thereon and other than any disposition to the Borrower Company or any Restricted Subsidiary) any shares of capital stock of any Restricted Subsidiary may sellthat, lease, convey or otherwise dispose at the time of assets (i) if such sale, leasetransfer, conveyance assignment or other disposition is conveyance, either (A) owns, leases or has material contract rights in respect of portfolio Investments in the ordinary course of its business at fair market value, any Principal Property or (B) is a party to a Key Contract; or
(iv) sell, transfer, assign or convey any assets or any shares of obsoletecapital stock of any Restricted Subsidiary (collectively, worn-out or surplus property and property no longer used or useful in a "Disposition") if, on the conduct day on which such proposed Disposition is to occur, the aggregate book value (at the time of the business proposed disposition thereof) of such assets or such shares (as the case may be), when added to the aggregate book value (at the time or times of the Borrower disposition thereof) of all other assets or shares disposed of by the Company and its Subsidiaries, Restricted Subsidiaries under this clause (Civ) a sale of property to during the extent such property is exchanged for credit against then current Fiscal Quarter and the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees three then most recently completed Fiscal Quarters exceeds 20% of the Borrower aggregate book value of the assets of the Company and its Subsidiaries; (F) dispositions of tangible property Restricted Subsidiaries as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part date of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business most recent balance sheet of the Borrower and its SubsidiariesCompany delivered pursuant to Section 7.1(a); (J) dispositions in the ordinary course of business of accounts receivable in connection provided that, if concurrently with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of any Disposition made pursuant to this clause (iiiv) or within one year thereof, all or substantially all of the net proceeds of such Disposition are either (x) reinvested (whether by acquisition, improvement, repair, construction or otherwise) in assets related to the Borrower business of the Company or any Restricted Subsidiary or (y) applied ratably to (1) (A) on any date prior to the Transition Date, reduce the Total Commitment hereunder (it being understood that the Company will repay Loans in such principal amount as is required such that the sum of the aggregate principal of all Loans outstanding after such repayment does not exceed the Total Commitment as so reduced) and its Subsidiaries during (B) reduce the term Total Commitment (as therein defined) under the $400,000,000 Credit Agreement (it being understood that the Company will repay loans and unreimbursed letter of credit drawings thereunder in such principal amounts such that the aggregate principal of all Loans and Letter of Credit Obligations (in each case as defined therein) outstanding do not exceed the Total Commitment thereunder) and (2) repay all other Indebtedness then outstanding (including Indebtedness resulting from the Term Loans and the Private Placement Notes), such Disposition shall be disregarded for purposes of calculations pursuant to this Agreement clause (iv) from and after the time of such reinvestment or application; provided, further, that a Disposition of all or any portion of the Company's lubricants blending plant located at Cicero, Illinois shall not exceed 25% be prohibited by this clause (iv) and shall be disregarded for purposes of Net Worth as of calculations pursuant to this clause (iv). Nothing in this Section 8.1(b) shall prohibit the end Company or any Wholly-Owned Restricted Subsidiary from purchasing or otherwise acquiring the assets or stock of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02Wholly-Owned Restricted Subsidiary.
Appears in 1 contract
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding receivables and Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(ia) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;; and
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiariesproperty, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are promptly applied to the purchase of such replacement property within 90 days of such saleproperty; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (FE) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (GF) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; or (HG) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, value and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during (excluding the term of this Agreement FIS Transaction) shall not exceed (A) 25% of Net Worth (determined as of the end last day of any fiscal quarter the immediately preceding Fiscal Year) in any such disposition; andFiscal Year other than Fiscal Year 2005 or (B) 15% of Net Worth in Fiscal Year 2005.
(dh) Section 7.03 of the Credit Agreement is hereby amended to read as set forth on Schedule 7.02.follows:
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial Inc /De/)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge, consolidate or otherwise combine or liquidate with or into, or conveyenter into or consummate any Disposition (other than any Disposition resulting from a casualty or condemnation), transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) transactions to or in favor of of, any Person, except:
(i) any Restricted Subsidiary may merge or otherwise consolidate with the Borrower; Borrower (provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person corporation) and (ii) the Borrower or any Restricted Subsidiary may merge or otherwise consolidate with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving PersonRestricted Subsidiary;
(b) any Restricted Subsidiary may sell all or any part of otherwise transfer its assets (upon voluntary liquidation or otherwise) to the Borrower and the Borrower or another any Restricted Subsidiary that is a Wholly-Owned may sell or otherwise transfer its assets (upon voluntary liquidation or otherwise) to any other Restricted Subsidiary;
(c) the Borrower or any Foreign Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments sell its accounts receivable for cash pursuant to discounting arrangements entered into in the ordinary course of its business at fair market valuebusiness, provided that (Bi) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of such sale is without recourse to the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization other Restricted Subsidiaries and (ii) not otherwise permitted the aggregate amount of all such financings outstanding at any one time, when added to be sold, leased, conveyed or disposed the aggregate amount of in Indebtedness outstanding at such time under clause (ig) immediately precedingof Section 8.4, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall does not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such disposition$75,000,000; and
(d) the Borrower or any Restricted Subsidiary may consummate one or more Dispositions (in addition to any thereof described in any other provision of this Section 8.2), provided that (i) the Borrower complies with the requirements of Section 2.8(a), (ii) such Disposition is made for fair value (as set forth on Schedule 7.02determined in good faith by the Borrower) and (iii) the aggregate consideration received for all assets disposed of in Dispositions from and after the Closing Date pursuant to this clause (d) shall not exceed $250,000,000.
Appears in 1 contract
Samples: Credit Agreement (E&s Holdings Corp)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, and the Borrower or the applicable Subsidiary shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial, Inc.)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries Restricted Subsidiary to, merge, consolidate or otherwise combine or liquidate with or into, or conveyenter into or consummate any Disposition (other than any Disposition resulting from a casualty or condemnation) or any Acquisition, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) transactions to or in favor of of, any Person, except:
(ia) any Restricted Subsidiary may merge or otherwise consolidate with (x) the Borrower; provided Borrower (provided, however, that the Borrower shall be the continuing or surviving Person, corporation) or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (iiy) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving PersonRestricted Subsidiary;
(b) any Restricted Subsidiary may sell all or any part of otherwise transfer its assets (upon voluntary liquidation or otherwise) to the Borrower or another any other Restricted Subsidiary, and the Borrower may sell or otherwise transfer its assets to any Restricted Subsidiary that is (which Restricted Subsidiary shall, immediately after giving effect to such transfer, continue to be a Wholly-Owned Restricted Subsidiary);
(c) the Borrower or any Restricted Subsidiary may sellconsummate one or more Dispositions; provided, leasehowever, convey or otherwise dispose that (x) the Borrower complies with the requirements of assets clause (i) if such sale, lease, conveyance or other disposition is (Ad) of portfolio Investments in the ordinary course of its business at fair market valueSection 3.1.1, (By) of obsolete, worn-out or surplus property and property no longer used or useful such Disposition is made for fair value (as determined in good faith by the conduct of the business of the Borrower and its Subsidiaries, (CBorrower) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (Cz) the aggregate value of consideration received for all assets disposed of in Dispositions not constituting Real Estate Financings from and after the Closing Date pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed the sum of (1) $150,000,000 plus (2) at any time, 25% of Net Worth as the total value (determined, with respect to each Permitted Acquisition, on the date of such Permitted Acquisition) of the end of any fiscal quarter immediately preceding any assets acquired pursuant to all Permitted Acquisitions consummated at or prior to such disposition; andtime;
(d) the Borrower or any Restricted Subsidiary may consummate an Acquisition (any such Acquisition permitted pursuant to this clause, a "Permitted Acquisition"), so long as
(i) such Acquisition and all transactions related thereto are consummated in accordance with applicable law,
(ii) in the case of an Acquisition of Capital Stock or other equity interest by the Borrower or a Restricted Subsidiary of any Person,
(A) such Acquisition results in the issuer of such Capital Stock or other equity interest becoming a Restricted Subsidiary,
(B) the Borrower pledges the Capital Stock of such Person to the Administrative Agent to the extent required under Section 7.1.8, and
(C) such Person executes a supplement to the Guaranty to the extent required under Section 7.1.8,
(iii) in the case of a merger of the Borrower with another Person that results in such Person being the surviving entity, (u) the Person formed by or surviving any such merger or consolidation (if other than the Borrower) shall be a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (such Person being the "Successor Borrower"), (v) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (w) no Default would occur as a result of the consummation of such merger or consolidation, (x) the Successor Borrower shall be in compliance, on a pro forma basis as set forth on Schedule 7.02.in clause (d)(vii), (y) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guaranty shall continue to be effective with
Appears in 1 contract
Samples: Credit Agreement (Regal Cinemas Inc)
Consolidations and Mergers; Sales of Assets. The Borrower Company shall not, and shall not permit any of its Subsidiaries Restricted Subsidiary to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) be a party to any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing merger or surviving Personconsolidation, except that, so long as no Default then exists or with any one would exist immediately after giving effect thereto or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiarywould result therefrom, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (iiA) the Borrower or any Subsidiary Company may merge with any other Person; , provided that the Company is the survivor of such merger is consummated as part merger, and (B) any Wholly-Owned Restricted Subsidiary of a Permitted Acquisition and, in the case Company may merge or consolidate into the Company or with or into any other Wholly-Owned Restricted Subsidiary of any merger involving the Borrower, the Borrower shall be the continuing or surviving PersonCompany;
(bii) sell, transfer, convey or lease the Principal Properties other than in connection with any Subsidiary may sell Permitted Lien granted thereon, and other than the sale of all or any part portion of its assets the Principal Properties pursuant to one or more Dispositions permitted pursuant to clause (upon voluntary liquidation iv) of this subsection 8.1(b) or otherwise) one or more Sale Leaseback Transactions permitted pursuant to the Borrower or another Subsidiary that is a Wholly-Owned SubsidiarySection 8.1(g);
(ciii) sell, transfer, assign or convey (other than in connection with any Permitted Lien granted thereon and other than any disposition to the Borrower Company or any Restricted Subsidiary) any shares of capital stock of any Restricted Subsidiary may sellthat, lease, convey or otherwise dispose at the time of assets (i) if such sale, leasetransfer, conveyance assignment or other disposition is conveyance, either (A) owns, leases or has material contract rights in respect of portfolio Investments in the ordinary course of its business at fair market value, any Principal Property or (B) is a party to a Key Contract; or
(iv) sell, transfer, assign or convey any assets or any shares of obsoletecapital stock of any Restricted Subsidiary (collectively, worn-out or surplus property and property no longer used or useful in a "Disposition") if, on the conduct day on which such proposed Disposition is to occur, the aggregate book value (at the time of the business proposed disposition thereof) of such assets or such shares (as the case may be), when added to the aggregate book value (at the time or times of the Borrower disposition thereof) of all other assets or shares disposed of by the Company and its Subsidiaries, Restricted Subsidiaries under this clause (Civ) a sale of property to during the extent such property is exchanged for credit against then current Fiscal Quarter and the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees three then most recently completed Fiscal Quarters exceeds 20% of the Borrower aggregate book value of the assets of the Company and its Subsidiaries; (F) dispositions of tangible property Restricted Subsidiaries as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part date of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business most recent balance sheet of the Borrower and its SubsidiariesCompany delivered pursuant to Section 7.1(a); (J) dispositions in the ordinary course of business of accounts receivable in connection provided that, if concurrently with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of any Disposition made pursuant to this clause (iiiv) or within one year thereof, all or substantially all of the net proceeds of such Disposition are either (x) reinvested (whether by acquisition, improvement, repair, construction or otherwise) in assets related to the business of the Company or any Restricted Subsidiary or (y) applied ratably to (1) (A) reduce the Total Commitment hereunder (it being understood that the Company will repay Loans and Letter of Credit Borrowings in such principal amount as is required such that the sum of the Effective Amount of all Loans, -72- 79 whether Committed Loans or Bid Loans, plus the Effective Amount of all Letter of Credit Obligations outstanding after such repayment does not exceed the Total Commitment as so reduced) and (B) prior to the Transition Date (as defined in the $150,000,000 Credit Agreement) reduce the Total Commitment (as therein defined) pursuant to the $150,000,000 Credit Agreement (it being understood that the Company will repay Revolving Loans thereunder in such principal amount such that the aggregate principal amount of all Revolving Loans thereunder does not exceed the Total Commitment thereunder as so reduced) and (2) repay all other Indebtedness then outstanding (including Indebtedness evidenced by the Borrower Term Loans made pursuant to the $150,000,000 Credit Agreement and its Subsidiaries during the term Private Placement Notes), such Disposition shall be disregarded for purposes of calculations pursuant to this Agreement clause (iv) from and after the time of such reinvestment or application; provided, further, that a Disposition of all or any portion of the Company's lubricants blending plant located at Cicero, Illinois shall not exceed 25% be prohibited by this clause (iv) and shall be disregarded for purposes of Net Worth as of calculations pursuant to this clause (iv). Nothing in this Section 8.1(b) shall prohibit the end Company or any Wholly-Owned Restricted Subsidiary from purchasing or otherwise acquiring the assets or stock of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02Wholly-Owned Restricted Subsidiary.
Appears in 1 contract
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, either (x) the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person or (y) a Subsidiary that is not a Wholly-Owned Subsidiary may be the continuing or surviving Person; provided, the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B)) and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to (i) the Borrower or Borrower, (ii) another Subsidiary that is a Wholly-Owned SubsidiarySubsidiary or (iii) another Person; provided, in the case of this clause (iii), the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B));
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 360 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02.;
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial, Inc.)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries Subsidiary to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) be a party to any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing merger or surviving Personconsolidation, except that, so long as no Default or with any one Event of Default then exists or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiarywould exist immediately after giving effect thereto or would result therefrom, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (iiA) the Borrower or any Subsidiary may merge with any other Person; , provided that the Borrower is the survivor of such merger and is consummated as part a Domestic corporation, and (B) any Wholly-Owned Subsidiary of a Permitted Acquisition and, in the case Borrower may merge or consolidate into the Borrower or with or into any other Wholly-Owned Subsidiary of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(bii) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct substantially all of the business assets of the Borrower and its Subsidiaries, taken as a whole, whether in one transaction or a series of transactions;
(Ciii) a sell, transfer, convey or lease the Principal Properties other than in connection with any Permitted Lien granted thereon pursuant to Section 7.01(a)(v) and other than the sale of property all or any portion of the Principal Properties pursuant to one or more Dispositions permitted pursuant to clause (v) of this subsection 7.01(b);
(iv) sell, transfer, assign or convey (other than any disposition to the extent such property is exchanged for credit against Borrower or any Wholly-Owned Subsidiary) any shares of capital stock or other equity interests in any Subsidiary that, at the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days time of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution transfer, assignment or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leasesconveyance, subleases, licenses directly or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that indirectly either (A) no Default owns, leases or Event has material contract rights in respect of Default shall have occurred any Principal Property or be continuing or would occur after giving effect thereto, (B) all is a party to a Key Contract; or
(v) sell, transfer, assign or convey any assets or any shares of capital stock of or other equity interests in any Subsidiary (collectively, a "Disposition") if, on the day on which such dispositions shall be for fair market valueproposed Disposition is to occur, and (C) the aggregate book value (at the time of the proposed disposition thereof) of such assets, shares or equity interests (as the case may be), when added to the aggregate book value (at the time or times of the disposition thereof) of all assets other assets, shares or equity interests disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during under this clause (v) on or after the term of this Agreement shall not exceed 25Closing Date exceeds 20% of Net Worth the aggregate book value of the assets of the Borrower and its Subsidiaries as of the end date of the most recent balance sheet of the Borrower delivered pursuant to Section 6.01(a) or (b); provided that, if concurrently with any Disposition made pursuant to this clause (v) or within one year thereof, all or substantially all of the net proceeds of such Disposition are either
(A) reinvested (whether by acquisition, improvement, repair, construction or otherwise) in assets related to the business of the Borrower or any Subsidiary, or
(B) applied to repay Loans and reduce the Aggregate Commitment hereunder (it being understood that the Borrower will repay Loans and L/C Borrowings in such principal amount as is required such that the sum of the Outstanding Amount of all Loans, whether Committed Loans, Swing Line Loans or Bid Loans, plus the Outstanding Amount of all Letter of Credit Obligations outstanding after such repayment does not exceed the Aggregate Commitment as so reduced), or
(C) applied ratably (1) in the manner set forth in clause (B) above and (2) prior to the Stated Maturity Date (as defined in the 364-Day Credit Agreement) to repay Loans under the 364-Day Credit Agreement and reduce the Aggregate Commitment (as therein defined) pursuant to the 364-Day Credit Agreement (it being understood that the Borrower will repay Loans thereunder in such principal amount such that the aggregate principal amount of all Loans thereunder does not exceed the Aggregate Commitment thereunder as so reduced), or
(D) applied ratably (1) in the manner specified in clause (B) above and (2) to repay other Indebtedness then outstanding (other than Indebtedness which is subordinated to the Obligations) (including Indebtedness evidenced by the Loans made pursuant to the 364-Day Credit Agreement, the Private Placement Notes and the Senior Notes), then such Disposition shall be disregarded for purposes of calculations pursuant to this clause (v) from and after the time of such reinvestment or application. Nothing in this Section 7.01(b) shall prohibit the Borrower or any Wholly-Owned Subsidiary from purchasing or otherwise acquiring the assets or stock of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02Wholly-Owned Subsidiary.
Appears in 1 contract
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding receivables and Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(ia) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;; and
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiariesproperty, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are promptly applied to the purchase of such replacement property within 90 days of such saleproperty; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (FE) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (GF) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; or (HG) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, value and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth (determined as of the end last day of any fiscal quarter the immediately preceding Fiscal Year) in any such disposition; and
(d) as set forth on Schedule 7.02Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial Inc /De/)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, either (x) the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person or (y) a Subsidiary that is not a Wholly-Owned Subsidiary may be the continuing or surviving Person; provided, the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B)) and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to (i) the Borrower or Borrower, (ii) another Subsidiary that is a Wholly-Owned SubsidiarySubsidiary or (iii) another Person; provided, in the case of this clause (iii), the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B));
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 360 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and Securitization, (L) results in (I) an Investment permitted pursuant to Section 7.03 (other than Section 7.03(a)(iii)(B)), (II) a Permitted Lien or (III) a Restricted Payment permitted by Section 7.06, or (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, (M) dispositions of Insurance Investments by any Insurance Subsidiary (or any Subsidiary of an Insurance Subsidiary), (N) any dispositions pursuant to Insurance Contracts, Reinsurance Agreements, Retrocession Agreements and Statutory Reserve Financings entered into in the ordinary course of business for the purpose of managing insurance risk consistent with industry practice; provided that (A) no Default such sale, lease, conveyance or Event other disposition, in one transaction or a series of Default shall have occurred transactions, directly or be continuing indirectly, does not constitute all or would occur substantially all of the assets of the Borrower and (B) after giving effect theretoto such sale, (B) all such dispositions lease, conveyance or other disposition, the Borrower shall be for fair market valuein compliance with the financial covenants set forth in Sections 7.09(a), 7.09(b) and (C7.09(c), in each case on a pro forma basis; provided that compliance with the financial covenant in Section 7.09(c) shall only be so tested at such time if, at such time, the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such dispositionRBC Ratio Test Condition would be satisfied; and
(d) any binding agreement for the sale, lease, conveyance or other disposition of assets existing on the Effective Date, and, to the extent the transactions or series of related transactions under any such agreement exceeds $5,000,000, as set forth on Schedule 7.02. Notwithstanding the foregoing, in no event shall FGLIC cease to be a direct or indirect Subsidiary of the Borrower pursuant to any such transaction or any other type of transaction.
Appears in 1 contract
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding receivables and Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(ia) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;Subsidiary (other than NTINY); and
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiariesproperty, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are promptly applied to the purchase of such replacement property within 90 days of such saleproperty; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (FE) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (GF) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract any insurance or insurance related contract entered into by NTINY in the ordinary course of business; or (HG) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, value and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement (excluding trade receivables sold or otherwise conveyed to or by a Securitization Vehicle) shall not exceed 2515% of Net Worth (determined as of the end last day of any fiscal quarter the immediately preceding Fiscal Year) in any such disposition; and
(d) as set forth on Schedule 7.02Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial Inc /De/)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding receivables and Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, and the Borrower or the applicable Subsidiary shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;; and
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (FE) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (GF) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (HG) a voluntary termination of a Swap Contract; (IH) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (JI) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (KJ) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02Worth.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Title Group, Inc.)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, either (x) the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person or (y) a Subsidiary that is not a Wholly-Owned Subsidiary may be the continuing or surviving Person; provided, the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B)) and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to (i) the Borrower or Borrower, (ii) another Subsidiary that is a Wholly-Owned SubsidiarySubsidiary or (iii) another Person; provided, in the case of this clause (iii), the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B));
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 360 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and or (L) results in (I) an Investment permitted pursuant to Section 7.03 (other than Section 7.03(a)(iii)(B)), (II) a Permitted Lien or (III) a Restricted Payment permitted by Section 7.06, or (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, ; provided that (A) no Default such sale, lease, conveyance or Event other disposition, in one transaction or a series of Default shall have occurred transactions, directly or be continuing indirectly, does not constitute all or would occur substantially all of the assets of the Borrower and (B) after giving effect theretoto such sale, (B) all such dispositions lease, conveyance or other disposition, the Borrower shall be for fair market valuein compliance with the financial covenants set forth in Sections 7.09(a) and 7.09(b), and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such dispositionin each case on a pro forma basis; and
(d) as set forth on Schedule 7.02.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial, Inc.)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(ia) 0 any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) 0 the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets assets
(i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02.not
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial, Inc.)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, either (x) the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person or (y) a Subsidiary that is not a Wholly-Owned Subsidiary may be the continuing or surviving Person; provided, the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B)) and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
; (b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to (i) the Borrower or Borrower, (ii) another Subsidiary that is a Wholly-Owned Subsidiary;
Subsidiary or (iii) another Person; provided, in the case of this clause (iii), the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B)); (c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 360 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such disposition; andthe
(d) any binding agreement for the sale, lease, conveyance or other disposition of assets existing on the Effective Date, and, to the extent the transactions or series of related transactions under any such agreement exceeds $5,000,000, as set forth on Schedule 7.02. Notwithstanding the foregoing, in no event shall FGLIC cease to be a direct or indirect Subsidiary of the Borrower pursuant to any such transaction or any other type of transaction.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial, Inc.)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries Subsidiary to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) be a party to any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing merger or surviving Personconsolidation, except that, so long as no Default or with any one Event of Default then exists or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiarywould exist immediately after giving effect thereto or would result therefrom, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (iiA) the Borrower or any Subsidiary may merge with any other Person; , provided that the Borrower is the survivor of such merger and is consummated as part a Domestic corporation, and (B) any Wholly-Owned Subsidiary of a Permitted Acquisition and, in the case Borrower may merge or consolidate into the Borrower or with or into any other Wholly-Owned Subsidiary of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(bii) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct substantially all of the business assets of the Borrower and its Subsidiaries, taken as a whole, whether in one transaction or a series of transactions;
(Ciii) a sell, transfer, convey or lease the Principal Properties other than in connection with any Permitted Lien granted thereon pursuant to Section 7.01(a)(v) and other than the sale of property all or any portion of the Principal Properties pursuant to one or more Dispositions permitted pursuant to clause (v) of this subsection 7.01(b);
(iv) sell, transfer, assign or convey (other than any disposition to the extent such property is exchanged for credit against Borrower or any Wholly-Owned Subsidiary) any shares of capital stock or other equity interests in any Subsidiary that, at the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days time of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution transfer, assignment or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leasesconveyance, subleases, licenses directly or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that indirectly either (A) no Default owns, leases or Event has material contract rights in respect of Default shall have occurred any Principal Property or be continuing or would occur after giving effect thereto, (B) all is a party to a Key Contract; or
(v) sell, transfer, assign or convey any assets or any shares of capital stock of or other equity interests in any Subsidiary (collectively, a "Disposition") if, on the day on which such dispositions shall be for fair market valueproposed Disposition is to occur, and (C) the aggregate book value (at the time of the proposed disposition thereof) of such assets, shares or equity interests (as the case may be), when added to the aggregate book value (at the time or times of the disposition thereof) of all assets other assets, shares or equity interests disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during under this clause (v) on or after the term of this Closing Date (as defined in the Three-Year Credit Agreement shall not exceed 25as in effect on the date hereof) exceeds 20% of Net Worth the aggregate book value of the assets of the Borrower and its Subsidiaries as of the end date of the most recent balance sheet of the Borrower delivered pursuant to Section 6.01(a) or (b); provided that, if concurrently with any Disposition made pursuant to this clause (v) or Section 7.01(b)(v) of the Three-Year Credit Agreement or the 364-Day Credit Agreement (or any analagous provision of documentation therefor in effect hereafter) or within one year thereof all or substantially all of the net proceeds of such Disposition are either
(A) reinvested (whether by acquisition, improvement, repair, construction or otherwise) in assets related to the business of the Borrower or any Subsidiary, or
(B) applied to repay the amount then outstanding under the Loans in accordance with Section 2.03(b), or
(C) applied ratably (1) in the manner set forth in clause (B) above and (2) to repay loans under the Three-Year Credit Agreement and the 364-Day Credit Agreement and to reduce the Aggregate Commitments thereunder (as defined in the Three-Year Credit Agreement and the 364-Day Agreement, respectively, each, as in effect on the date hereof) pursuant to the those agreements (it being understood that the Borrower will repay loans and letter of credit borrowings under those agreements (as applicable) in such principal amounts as are required such that the sum of the outstanding amount of all loans thereunder does not exceed the Aggregate Commitment thereunder as so reduced), or
(D) applied ratably (1) in the manner specified in clause (B) above and (2) to repay other Indebtedness then outstanding (other than Indebtedness which is subordinated to the Obligations) (including Indebtedness evidenced by the Loans made pursuant to the Three-Year Credit Agreement, the 364-Day Agreement, the Private Placement Notes and the Senior Notes), then such Disposition shall be disregarded for purposes of calculations pursuant to this clause (v) from and after the time of such reinvestment or application. Nothing in this Section 7.01(b) shall prohibit the Borrower or any Wholly-Owned Subsidiary from purchasing or otherwise acquiring the assets or stock of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02Wholly-Owned Subsidiary.
Appears in 1 contract
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge, consolidate or otherwise combine or liquidate with or into, or conveyenter into or consummate any Disposition (other than any Disposition resulting from a casualty or condemnation), transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) transactions to or in favor of of, any Person, except:
(i) any Restricted Subsidiary may merge or otherwise consolidate with the Borrower; provided Borrower (PROVIDED that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person corporation) and (ii) the Borrower or any Restricted Subsidiary may merge or otherwise consolidate with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving PersonRestricted Subsidiary;
(b) any Restricted Subsidiary may sell all or any part of otherwise transfer its assets (upon voluntary liquidation or otherwise) to the Borrower and the Borrower or another any Restricted Subsidiary that is a Wholly-Owned may sell or otherwise transfer its assets (in the case of any such Restricted Subsidiary, upon voluntary liquidation or otherwise) to any Restricted Subsidiary;
(c) the Borrower or any Restricted Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in consummate the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such dispositionCorporate Sale Transaction; and
(d) the Borrower or any Restricted Subsidiary may consummate one or more Dispositions (in addition to any thereof described in any other provision of this SECTION 7.2.7), PROVIDED that (i) the Borrower complies with the requirements of CLAUSE (f) of SECTION 3.1.1, (ii) such Disposition is made for fair value (as set forth on Schedule 7.02determined in good faith by the Borrower) and (iii) the aggregate consideration received for all assets disposed of in Dispositions from and after the Closing Date pursuant to this CLAUSE (d) shall not exceed $125,000,000.
Appears in 1 contract
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding receivables and Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, and the Borrower or the applicable Subsidiary shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary that is a Wholly-Owned Subsidiary;; and
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth Worth, and (D) in no event shall the Borrower make any disposition of any shares of the common Capital Stock of FNT that it owns as of the end Closing Date nor permit its ownership percentage of any fiscal quarter immediately preceding any such disposition; and
(d) as set forth on Schedule 7.02the common Capital Stock of FNT to be less than 75% of the common Capital Stock of FNT.
Appears in 1 contract
Samples: Credit Agreement (Fidelity National Financial Inc /De/)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge, consolidate or otherwise combine or liquidate with or into, or conveyenter into or consummate any Disposition (other than any Disposition resulting from a casualty or condemnation), transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) transactions to or in favor of of, any Person, except:
(i) any Restricted Subsidiary may merge or otherwise consolidate with the Borrower; provided Borrower (PROVIDED that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person corporation) and (ii) the Borrower or any Restricted Subsidiary may merge or otherwise consolidate with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving PersonRestricted Subsidiary;
(b) any Restricted Subsidiary may sell all or any part of otherwise transfer its assets (upon voluntary liquidation or otherwise) to the Borrower and the Borrower or another any Restricted Subsidiary that is a Wholly-Owned may sell or otherwise transfer its assets (in the case of any such Restricted Subsidiary, upon voluntary liquidation or otherwise) to any Restricted Subsidiary;
(c) the Borrower or any Restricted Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in consummate the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such dispositionCorporate Sale Transaction; and
(d) the Borrower or any Restricted Subsidiary may consummate one or more Dispositions (in addition to any thereof described in any other provision of this SECTION 7.2.7), PROVIDED that (i) the Borrower complies with the requirements of CLAUSE (E) of SECTION 3.1.1, (ii) such Disposition is made for fair value (as set forth on Schedule 7.02determined in good faith by the Borrower) and (iii) the aggregate consideration received for all assets disposed of in Dispositions from and after the Closing Date pursuant to this CLAUSE (D) shall not exceed $125,000,000.
Appears in 1 contract
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) to or in favor of any Person, except:
(i) any Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person, or with any one or more Subsidiaries; provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, either (x) the Subsidiary that is a Wholly-Owned Subsidiary shall be the continuing or surviving Person or (y) a Subsidiary that is not a Wholly-Owned Subsidiary may be the continuing or surviving Person; provided, the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B)) and (ii) the Borrower or any Subsidiary may merge with any other Person; provided that such merger is consummated as part of a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary may sell all or any part of its assets (upon voluntary liquidation or otherwise) to (i) the Borrower or Borrower, (ii) another Subsidiary that is a Wholly-Owned SubsidiarySubsidiary or (iii) another Person; provided, in the case of this clause (iii), the relevant transaction will be treated as an Investment and comply with Section 7.03 (other than Section 7.03(a)(iii)(B));
(c) the Borrower or any Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments in the ordinary course of its business at fair market value, (B) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 360 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization and or (L) results in (I) an Investment permitted pursuant to Section 7.03 (other than Section 7.03(a)(iii)(B)), (II) a Permitted Lien or (III) a Restricted Payment permitted by Section 7.06, or (ii) not otherwise permitted to be sold, leased, conveyed or disposed of in clause (i) immediately preceding, ; provided that (A) no Default such sale, lease, conveyance or Event other disposition, in one transaction or a series of Default shall have occurred transactions, directly or be continuing indirectly, does not constitute all or would occur substantially all of the assets of the Borrower and (B) after giving effect theretoto such sale, (B) all such dispositions lease, conveyance or other disposition, the Borrower shall be for fair market value, and in compliance with the financial covenants set forth in Sections 7.09(a) (C) the aggregate value of all assets disposed of pursuant after giving effect to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall not exceed 25% of any applicable Net Worth as of the end of any fiscal quarter immediately preceding any such dispositionAdjustment therein) and 7.09(b), in each case on a pro forma basis; and
and (d) as set forth on Schedule 7.02.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Fidelity National Financial, Inc.)
Consolidations and Mergers; Sales of Assets. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries Restricted Subsidiary to, merge, consolidate or otherwise combine or liquidate with or into, or conveyenter into or consummate any Disposition (other than any Disposition resulting from a casualty or condemnation), transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or any part of its assets (including receivables, but excluding Equity Interests, and in all cases whether now owned or hereafter acquired) transactions to or in favor of of, any Person, except:
(i) any Restricted Subsidiary may merge or otherwise consolidate with the Borrower; Borrower (provided that the Borrower shall be the continuing or surviving Person, corporation); (ii) any Restricted Subsidiary may merge or otherwise consolidate with any one or more Subsidiaries; other Restricted Subsidiary which is a Guarantor (provided that if any transaction shall be between a Subsidiary and a Subsidiary that is a Wholly-Owned Subsidiary, the Subsidiary that is a Wholly-Owned Subsidiary such Guarantor shall be the continuing or surviving Person corporation); (iii) any Restricted Subsidiary (the "Subject Subsidiary") (other than a Material Subsidiary) may merge or otherwise consolidate with any Restricted Subsidiary which is not a Guarantor so long as the Subject Subsidiary, when combined with all other Restricted Subsidiaries merged or consolidated in accordance with this subclause (iii), would not constitute a Material Subsidiary; (iv) any Restricted Subsidiary which is not a Guarantor may merge or otherwise consolidate with any other Restricted Subsidiary which is not a Guarantor; and (iiv) the Borrower or any Restricted Subsidiary may merge or consolidate with any other Person; provided a Restricted Subsidiary which is not a Guarantor to the extent that the fair market value, measured at the time of such merger is consummated as part or consolidation, of the assets transferred in such merger or consolidation would be a Permitted Acquisition and, in the case of any merger involving the Borrower, the Borrower shall be the continuing permitted Investment under Section 8.03(c) or surviving Person(i);
(b) any Restricted Subsidiary may sell all or any part of otherwise transfer its assets (upon voluntary liquidation or otherwise) to the Borrower, and Borrower or another any Restricted Subsidiary may sell or otherwise transfer its assets (upon voluntary liquidation or otherwise) to any other Restricted Subsidiary; provided, however, that Borrower and the Domestic Subsidiaries may not sell or otherwise transfer (upon voluntary liquidation or otherwise) its assets to any Subsidiary that is not a Wholly-Owned Guarantor other than (i) in the ordinary course of business as necessary to support the ordinary course operations of such Subsidiary; (ii) assets transferred in exchange for fair value; (iii) assets the fair value (determined in good faith by Borrower) of which, measured at the time of such transfer, would constitute permitted Investments under Section 8.03(c) or (i); and (iv) assets that, when aggregated with all other assets transferred pursuant to this clause (b) (iv), are not material;
(c) the Borrower or any Foreign Subsidiary may sell, lease, convey or otherwise dispose of assets (i) if such sale, lease, conveyance or other disposition is (A) of portfolio Investments sell its accounts receivable for cash pursuant to discounting arrangements entered into in the ordinary course of its business at fair market valuebusiness; provided, however, that (Bi) of obsolete, worn-out or surplus property and property no longer used or useful in the conduct of the business of the such sale is without recourse to Borrower and its Subsidiaries, (C) a sale of property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the Net Disposition Proceeds thereof are applied to the purchase of such replacement property within 90 days of such sale; (D) ordinary course dispositions of inventory, (E) ordinary course dispositions of real estate and related properties in connection with relocation activities for employees of the Borrower and its Subsidiaries; (F) dispositions of tangible property as part of a like kind exchange under Section 1031 of the Code in the ordinary course of business; (G) dispositions of real estate and related properties as part of the resolution or settlement of claims under an Insurance Contract in the ordinary course of business; (H) a voluntary termination of a Swap Contract; (I) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (J) dispositions in the ordinary course of business of accounts receivable in connection with the collection thereof, or (K) a Permitted Accounts Securitization other Restricted Subsidiaries and (ii) not otherwise permitted the aggregate amount of all such financings outstanding at any one time, when added to be sold, leased, conveyed or disposed the aggregate amount of in Indebtedness outstanding at such time under clause (ig) immediately precedingof Section 8.04, provided that (A) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto, (B) all such dispositions shall be for fair market value, and (C) the aggregate value of all assets disposed of pursuant to this clause (ii) by the Borrower and its Subsidiaries during the term of this Agreement shall does not exceed 25% of Net Worth as of the end of any fiscal quarter immediately preceding any such disposition$20,000,000; and
(d) Borrower or any Restricted Subsidiary may consummate one or more Dispositions (in addition to any thereof described in any other provision of this Section 8.02); provided, however, that (i) Borrower complies with the requirements of Section 2.08(a); (ii) such Disposition is made for fair value (as set forth on Schedule 7.02.determined in good faith by Borrower); and
Appears in 1 contract
