Consolidations, Mergers and Sales of Assets. The Company will not, and will not permit any of the Subsidiaries to, consolidate or merge with, or sell, lease or otherwise dispose of any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement: (a) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person; (b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person; (c) subject to Section 6.07, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary; (d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable; (e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital; (f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07; (g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction; (h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and (i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds).
Appears in 3 contracts
Samples: Revolving Credit Facility Agreement (Albany International Corp /De/), Revolving Credit Facility Agreement (Albany International Corp /De/), Five Year Revolving Credit Facility Agreement (Albany International Corp /De/)
Consolidations, Mergers and Sales of Assets. The Company will not(a) Enter into a transaction of merger or consolidation, except
(i) a member of the Consolidated Group may be a party to a transaction of merger or consolidation with another member of the Consolidated Group, provided that (A) if the Borrower is a party thereto, it is the surviving corporation, or (B) if a Guarantor is a party thereto, it shall be the surviving corporation or the surviving corporation shall be a Domestic Subsidiary and shall become a Guarantor hereunder as an Additional Credit Party pursuant to Section 7.11 concurrently therewith, and will not permit any (C) no Default or Event of Default shall exist either immediately prior to or immediately after giving effect thereto; and
(ii) a member of the Consolidated Group (other than the Borrower) may be a party to a transaction of merger or consolidation with any other Person, provided that (A) the provisions of Section 7.11 regarding joinder of certain Subsidiaries to, consolidate or merge as Additional Credit Parties hereunder shall be complied with, (B) no Default or Event of Default shall exist either immediately prior to or immediately after giving effect thereto, and (C) the provisions of subsection (c) of this Section shall be complied with.
(b) other than as between Credit Parties, sell, lease lease, transfer or otherwise dispose of any of its assets toassets, or, property and/or operations which in the case aggregate in any fiscal year shall constitute more than fifteen percent (15%) of a SubsidiaryConsolidated Total Realty at the end of the immediately preceding fiscal year or contributed more than fifteen percent (15%) Consolidated EBITDA for the immediately preceding fiscal year, issue without the prior written consent of the Required Lenders (which consent shall not be unreasonably withheld or sell delayed).
(c) Acquire all or any Equity Interests portion of the capital stock or other ownership interest in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
(a) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that which is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or all or any Subsidiary may sellsubstantial portion of the assets, lease or otherwise dispose property and/or operations of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets a Person which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out is not a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interestswithout the prior written consent of the Required Lenders (which consent shall not be unreasonably withheld or delayed), to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; andunless
(i) in addition to the foregoingcase of an acquisition of capital stock or other ownership interest where after giving effect thereto, the Company or any Subsidiary may sellsuch Person will not be a Subsidiary, lease or otherwise dispose then such acquisition will not cause a violation of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company and the Subsidiaries having been sold or otherwise disposed of, Section 8.4;
(ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale acquisition of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment capital stock or other assets to ownership interest where after giving effect thereto, such Person will be used a Subsidiary, or in the business case of an acquisition of assets, property and/or operations then
(A) the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction aggregate cost of the Commitments all such acquisitions shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in exceed an amount equal to 75% twenty-five percent (25%) of such Net Proceeds not so applied multiplied by Consolidated Assets at the fraction indicated in clause end of the immediately preceding fiscal year;
(bB) the Board of Directors (or functional equivalent) of the definition Person which is the subject of “the acquisition shall have approved the acquisition; and
(C) no Default or Event of Default would exist after giving effect thereto on a Pro Rata Proceeds” Forma Basis.
(calculated d) In the case of the Borrower, liquidate, wind-up or dissolve, whether voluntarily or involuntarily (or suffer to permit any such liquidation or dissolution).
(e) Alter the character of their business in any material respect from that conducted as of the date of the disposition giving rise to such Net Proceeds)Closing Date and similar or related businesses.
Appears in 3 contracts
Samples: Credit Agreement (United Dominion Realty Trust Inc), 364 Day Credit Agreement (United Dominion Realty Trust Inc), 364 Day Credit Agreement (United Dominion Realty Trust Inc)
Consolidations, Mergers and Sales of Assets. The Company will not, and will not permit any of the Subsidiaries to, consolidate or merge with, or sell, lease or otherwise dispose of any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
(a) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.076.06;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the in an aggregate amount of minority equity interests for all such transactions that will not result in Subsidiaries (excluding any such in which Persons other than the Company and the Subsidiaries hold minority interests sold in a Permitted AEC Transaction) does not exceed representing more than 7.5% of Consolidated Tangible Net Worth; and
(ih) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (hg) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from any such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to transaction shall be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except prepay Loans to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required under and in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceedsaccordance with Section 2.10(c).
Appears in 2 contracts
Samples: Revolving Credit Facility Agreement (Albany International Corp /De/), Revolving Credit Facility Agreement (Albany International Corp /De/)
Consolidations, Mergers and Sales of Assets. The Company (a) No Loan Party will, and no Loan Party will notpermit any of its Subsidiaries to, consolidate or merge with or into any other Person except as permitted in accordance with Section 5.04.
(b) No Loan Party will, and will not permit any of the its Subsidiaries to, consolidate or merge withsell, or selltransfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will any Loan Party permit any of its assets to, or, it Subsidiaries to issue any additional Equity Interest in the case of a such Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreementexcept:
(ai) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease or otherwise dispose sales of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceablebusiness;
(eii) any Foreign Subsidiary may sell Receivables disposition of surplus, discontinued or worn-out equipment or other assets (including leasehold interests) no longer used in one the on-going business of the Borrower and the Subsidiaries (including any Abandoned Subsidiaries and the assets thereof);
(iii) any disposition of cash or more transactions Temporary Cash Investments;
(iv) any sale or other disposition of readily marketable securities in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capitalbusiness;
(fv) any disposition of the Demil Assets;
(vi) any sale, transfer or other disposition not otherwise permitted by this Section 6.03 (x) to the Borrower or any Wholly-Owned Consolidated Subsidiary or (y) to any other Subsidiary or Joint Venture that would not be prohibited by Section 6.04 if it were an Investment; provided that any such sale, transfer or other disposition involving a Subsidiary or Joint Venture that is not a Loan Party shall be made in compliance with Section 6.05;
(vii) the Company and the Subsidiaries may carry out sale and leaseback transactions grant of any Lien permitted under Section 6.06 and may make investments permitted under Section 6.076.02;
(gviii) the Company sales, transfer and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose other dispositions of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one Subsidiaries which are solely engaged in the business of providing insurance or more Persons other than self-insurance coverage for the Company businesses of the Borrower and the Subsidiaries if permitted by Section 5.04, or the issuance of Equity Interests in such Subsidiaries to non-Affiliated third Persons in an aggregate value (ias determined by the Borrower in good faith) in case of issuance, or aggregate book value in the applicable Subsidiary remains a Subsidiary after giving effect case of sales, transfers or other dispositions, not to such transaction and (ii) after giving effect to such transaction, exceed in the aggregate amount $10,000,000 for all such Subsidiaries;
(ix) any disposition of minority equity interests assets with a fair market value of $50,000 or less;
(x) sales, transfers and dispositions to Joint Ventures of assets with an aggregate fair market value in Subsidiaries (excluding any such interests sold fiscal year not in a Permitted AEC Transaction) does not exceed 7.5% excess of Consolidated Tangible Net Worth$5,000,000; and
(ixi) in addition to the foregoingsales, the Company or any Subsidiary may sell, lease or otherwise dispose transfers and other dispositions of any of its assets for fair value (other than as Equity Interests in a Subsidiary) that are not permitted by any other clause of this Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause (xi) shall not exceed $10,000,000 during any fiscal year of the Borrower; provided that all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clauses (aiii), (vi) through and (hvii) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount made for fair value and for at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 7580% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)cash consideration.
Appears in 2 contracts
Samples: Credit Agreement (Alliant Techsystems Inc), Credit Agreement (Alliant Techsystems Inc)
Consolidations, Mergers and Sales of Assets. The Company will not, and will not permit Neither the Borrower nor any of the Subsidiaries to, Guarantors will consolidate or merge withwith or into, or acquire all or substantially all of the assets or stock of any other Person, or sell, lease or otherwise dispose of transfer all or any substantial part of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this AgreementPerson, provided that:
(ai) any Person the Borrower may merge with and into another Person if (x) such Person was organized under the Company laws of the United States of America or any Subsidiary Guarantor; provided that one of its states, (y) the Company or such Subsidiary Guarantor, as the case may be, Borrower is the corporation surviving Personsuch merger and (z) immediately after giving effect to such merger, no Default shall have occurred and be continuing;
(bii) any Person other than the Company or a Subsidiary Guarantor Guarantors may merge with one another, and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary Guarantors may sell, lease or otherwise dispose of any of its transfer assets to the Company or any other SubsidiaryBorrower;
(diii) any sale for cash only of Property by JDN DCI, pursuant to reasonable terms which are no less favorable to JDN DCI than would be obtained in a comparable arm's length transaction with a Person which is not an Affiliate, for fair market value (as determined in good faith by the Company Board of Directors of JDN DCI or any Subsidiary may sellthe Borrower or an Executive Committee thereof), lease provided that the proceeds thereof are used by JDN DCI, or are distributed by JDN DCI to the Borrower or a Guarantor to be used by it, for the purchase of comparable property, to repay Debt or to fund new development, or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used to be retained by it for working capital;
(fiv) the Company and sale by the Subsidiaries may carry out Borrower or a Guarantor of a Relinquished Property as part of a Section 1031 Exchange; provided that such sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07is pursuant to reasonable terms which are no less favorable to the Borrower or such Guarantor than would be obtained in a comparable arm's length transaction with a Person which is not an Affiliate, for fair market value (as determined in good faith by the Board of Directors of the Borrower or such Guarantor or an Executive Committee thereof), provided that the proceeds thereof are used by the Borrower or such Guarantor for the purchase of Replacement Property;
(gv) the Company and foregoing limitation on the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to acquisition of all or substantially all the foregoingassets or stock of another Person shall not prohibit, during any Fiscal Quarter, the Company or any Subsidiary may sell or otherwise dispose acquisition of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets or stock of another Person unless the aggregate assets or stock acquired in a single acquisition or series of related acquisitions of all or substantially all of the Company assets or stock of another Person by the Borrower and the Subsidiaries having been sold Guarantors during such Fiscal Quarter constituted more than 20% of Gross Asset Value at the end of the most recent Fiscal Quarter immediately preceding such Fiscal Quarter;
(vi) the foregoing limitation on the sale, lease or otherwise disposed ofother transfer of assets shall not prohibit, during any Fiscal Quarter, a transfer of assets (ii) no such transaction shall result in a reduction single transaction or in a series of related transactions) unless the aggregate assets to be so transferred, when combined with all other assets transferred, by the Borrower and the Guarantors during such Fiscal Quarter and the immediately preceding 3 Fiscal Quarters (but in each case excluding transfers permitted under clauses (i) through (iv) above), constituted more than 25% of Gross Asset Value at the end of the most recent Fiscal Quarter immediately preceding such Fiscal Quarter. In the case of any Guarantor which transfers substantially all of its assets pursuant to clause (vi) of the preceding sentence, and in the percentage case of any Guarantor the stock of which is being sold and with respect to which clause (vi) would have been satisfied if the transaction had been a sale of assets of such Guarantor, so long as such Guarantor does not own a Borrowing Base Property, such Guarantor may dissolve and shall be entitled to obtain from the Agent a written release from the Guaranty, provided that it can demonstrate to the reasonable satisfaction of the Equity Interests of Agent that (A) it has repaid in full all Debt owed to the Borrower or any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of other Guarantor and (iiiB) except such sale was for cash and in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01asset transfer, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal net cash proceeds received in connection therewith are being distributed to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt Borrower as part of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiariesdissolution, and certifying that upon obtaining such written release, it shall no Default has occurred and is continuing, then no reduction of the Commitments shall longer be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of a Guarantor for any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)purpose hereunder.
Appears in 2 contracts
Samples: Credit Agreement (JDN Realty Corp), Term Loan Credit Agreement (JDN Realty Corp)
Consolidations, Mergers and Sales of Assets. The Company will not, and will not permit any of the Subsidiaries to, consolidate or merge with, or sell, lease or otherwise dispose of any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
(a) The Borrower will not merge or consolidate with any Person may merge with and into the Company other Person, or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease sell or otherwise dispose of any transfer all or substantially all of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sellPerson, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary unless after giving effect to such transaction merger, consolidation, sale or other transfer, (i) no Default shall have occurred and be continuing and (ii) after giving effect the corporation surviving such merger or consolidation (if other than the Borrower) or the Person acquiring such assets is organized under the laws of a state of the United States and assumes in writing all the obligations of the Borrower hereunder and said surviving corporation or acquiring Person delivers to such transaction, the aggregate amount each Lender an opinion of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition counsel reasonably satisfactory to the foregoingRequired Lenders, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company form and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal substance satisfactory to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer Required Lenders, to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt assumption of such Net Proceedsobligations by such surviving corporation or acquiring Person is effective and is fully binding upon and enforceable against such surviving corporation or acquiring Person.
(b) The Borrower will not make any Restricted Asset Transfer, or permit any of its Subsidiaries to acquire real propertymake any Restricted Asset Transfer, equipment unless immediately after giving effect thereto:
(i) no Default (under Section 5.13(b) or other otherwise) shall have occurred and be continuing,
(ii) the aggregate book value of all assets to be used sold or otherwise transferred by the Combined Companies in Restricted Asset Transfers during the business twelve months then ended does not exceed 10% of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction consolidated total assets of the Commitments shall be required pursuant to this clause Borrower and its Subsidiaries at the time of such Restricted Asset Transfer, and
(iii) the aggregate book value of all assets sold or otherwise transferred by the Combined Companies in respect Restricted Asset Transfers after November 30, 1996 does not exceed 15% of the Net Proceeds consolidated total assets of the Borrower and its Subsidiaries at the time of such disposition (or the portion Restricted Asset Transfer. For purposes of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause this subsection (b) and Section 5.13(b), the book value of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise assets sold in a Restricted Asset Transfer shall be determined immediately prior to such Net Proceeds)Restricted Asset Transfer.
Appears in 2 contracts
Samples: Credit Agreement (Tenet Healthcare Corp), Credit Agreement (Tenet Healthcare Corp)
Consolidations, Mergers and Sales of Assets. The Company will not, and will not permit (a) Neither the Borrower nor any of the its Subsidiaries to, will consolidate or merge withwith or into any other Person, except that if, after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary of the Borrower may be merged into the Borrower if the Borrower is the surviving corporation, (ii) any Subsidiary of the Borrower may merge with any other corporation (other than the Borrower) if such Subsidiary is the surviving corporation; provided, that if a Guarantor is a party to any such merger, such Guarantor shall be the surviving corporation and (iii) Permitted Acquisitions and asset dispositions permitted pursuant to Subsection (b) of this Section may be consummated in the form of a merger, as long as, in the event of a Permitted Acquisition, the Borrower or a Subsidiary is the surviving Person, provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 5.09 and provided further that any such merger involving a Person that is a Guarantor shall not be permitted unless such Guarantor is the surviving Person.
(b) Neither the Borrower nor any of its Subsidiaries will sell, lease or otherwise dispose of transfer any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary)asset, except that, so long as no Default would result under any other provision of this Agreement:
(ai) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of its business (which ordinary course shall include the sale or other disposition of obsolete or excess inventory or intellectual property, fixtures or equipment to the extent ordinary and any consistent with past practice), (ii) sale of its assets which are obsoleteassets, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions not in the ordinary course of business business, which from and consistent with past practice, after the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) Closing Date do not in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing$25,000,000, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture transfers made as Investments permitted by Section 5.09 or a sale of Receivables not prohibited under Restricted Payments permitted by Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)5.14.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company No Loan Party will, nor will not, and will not it permit any Subsidiary of the Subsidiaries a Loan Party (other than a Structured Subsidiary) to, consolidate or merge withwith or into, or sell, lease or otherwise dispose of transfer all or any substantial part of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
Person, or discontinue or eliminate any business line or segment, provided that (a) any Person pursuant to the consummation of an Acquisition permitted under Section 5.08 (but not otherwise) a Loan Party may merge with and into another Person if (i) such Person was organized under the Company laws of the United States of America or any Subsidiary Guarantor; provided that one of its states, (ii) the Company or such Subsidiary Guarantor, as the case may be, Loan Party is the Person surviving Person;
such merger, (iii) immediately after giving effect to such merger, no Default shall have occurred and be continuing, and (iv) if the Borrower merges with another Loan Party, the Borrower is the Person surviving such merger; (b) any Person other than the Company or Subsidiaries of a Subsidiary Guarantor Loan Party (excluding Loan Parties) may merge with one another; and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sellforegoing limitation on the sale, lease or otherwise dispose other transfer of any assets and on the discontinuation or elimination of its a business line or segment shall not prohibit (1) a transfer of assets to or the Company discontinuance or any other Subsidiary;
elimination of a business line or segment (din a single transaction or in a series of related transactions) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business of the Borrower and any its Subsidiaries (other than Structured Subsidiaries) if, after giving effect thereto the Borrower and its Subsidiaries shall be in compliance on a pro forma basis, after giving effect to such transfer, discontinuation or elimination, with the terms and conditions of its assets which are obsolete, excess or unserviceable;
this Agreement and (e2) any Foreign Subsidiary may sell Receivables in one or more transactions divestitures of Portfolio Investments in the ordinary course of business of the Borrower and consistent its Subsidiaries (other than Structured Subsidiaries) if, after giving effect thereto (and to any concurrent acquisitions of Portfolio Investments or payments of outstanding Loans or Other Covered Indebtedness) the (A) Borrower and its Subsidiaries shall be in compliance on a pro forma basis, after giving effect to any such divestiture, with past practicethe terms and conditions of this Agreement, and (B) the Covered Debt Amount does not exceed the Borrowing Base; provided, however, that upon the occurrence and during the continuance of a Default or an Event of Default, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoingBorrower shall not sell, the Company or any Subsidiary may sell transfer or otherwise dispose of Equity Interests in any Subsidiaryasset (including without limitation any Portfolio Investment) without the prior written consent of the Administrative Agent. Notwithstanding the foregoing, a Loan Party may sell, transfer or otherwise dispose of Portfolio Investments originated or purchased by the Borrower and any transferred to a Structured Subsidiary may issue so long as (x) prior to and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction sale, transfer or other disposition (and (iiany concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) Covered Debt Amount does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) Borrowing Base and no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company Default exists and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver Borrower delivers to the Administrative Agent a certificate of a Financial Responsible Officer to such effect, and (y) either (i) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or (ii) the Borrowing Base immediately after giving effect that to such release is at least 120% of the Company Covered Debt Amount.”
(p) Section 5.18 of the Credit Agreement is hereby deleted in its entirety and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments following shall be required pursuant inserted in substitution thereof: First Amendment to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds).Loan Documents – Page 15 850755.00002
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company will not, and will not permit any of (i) the Subsidiaries to, consolidate or merge with, or sell, lease or otherwise dispose of any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
(a) any Person Borrower may merge with and into another Person if (x) such Person was organized under the Company laws of the United States of America or any Subsidiary Guarantor; provided that one of its states, (y) the Company or such Subsidiary Guarantor, as the case may be, Borrower is the corporation surviving Personsuch merger and (z) immediately after giving effect to such merger, no Default shall have occurred and be continuing;
(bii) any Person other than the Company or a Subsidiary Guarantor Guarantors may merge with one another, and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary Guarantors may sell, lease or otherwise dispose of any of its transfer assets to the Company or any other SubsidiaryBorrower;
(diii) any sale for cash only of Property by JDN DCI, pursuant to reasonable terms which are no less favorable to JDN DCI than would be obtained in a comparable arm's length transaction with a Person which is not an Affiliate, for fair market value (as determined in good faith by the Company Board of Directors of JDN DCI or any Subsidiary may sellthe Borrower or an Executive Committee thereof), lease provided that the proceeds thereof are -------- used by JDN DCI, or are distributed by JDN DCI to the Borrower or a Guarantor to be used by it, for the purchase of comparable property, to repay Debt or to fund new development, or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used to be retained by it for working capital;
(fiv) the Company and sale by the Subsidiaries may carry out Borrower or a Guarantor of a Relinquished Property as part of a Section 1031 Exchange; provided that such sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07-------- is pursuant to reasonable terms which are no less favorable to the Borrower or such Guarantor than would be obtained in a comparable arm's length transaction with a Person which is not an Affiliate, for fair market value (as determined in good faith by the Board of Directors of the Borrower or such Guarantor or an Executive Committee thereof), provided that the proceeds thereof -------- are used by the Borrower or such Guarantor for the purchase of Replacement Property;
(gv) the Company and foregoing limitation on the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to acquisition of all or substantially all the foregoingassets or stock of another Person shall not prohibit, during any Fiscal Quarter, the Company or any Subsidiary may sell or otherwise dispose acquisition of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets or stock of another Person unless the aggregate assets or stock acquired in a single acquisition or series of related acquisitions of all or substantially all of the Company assets or stock of another Person by the Borrower and the Subsidiaries having been sold Guarantors during such Fiscal Quarter constituted more than 20% of Gross Asset Value at the end of the most recent Fiscal Quarter immediately preceding such Fiscal Quarter;
(vi) the foregoing limitation on the sale, lease or otherwise disposed ofother transfer of assets shall not prohibit, during any Fiscal Quarter, a transfer of assets (ii) no such transaction shall result in a reduction single transaction or in a series of related transactions) unless the aggregate assets to be so transferred, when combined with all other assets transferred, by the Borrower and the Guarantors during such Fiscal Quarter and the immediately preceding 3 Fiscal Quarters (but in each case excluding transfers permitted under clauses (i) through (iv) above), constituted more than 25% of Gross Asset Value at the end of the most recent Fiscal Quarter immediately preceding such Fiscal Quarter. In the case of any Guarantor which transfers substantially all of its assets pursuant to clause (vi) of the preceding sentence, and in the percentage case of any Guarantor the stock of which is being sold and with respect to which clause (vi) would have been satisfied if the transaction had been a sale of assets of such Guarantor, such Guarantor may dissolve and shall be entitled to obtain from the Agent a written release from the Guaranty, provided that -------- it can demonstrate to the reasonable satisfaction of the Equity Interests of Agent that (A) it has repaid in full all Debt owed to the Borrower or any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of other Guarantor and (iiiB) except such sale was for cash and in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01asset transfer, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal net cash proceeds received in connection therewith are being distributed to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt Borrower as part of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiariesdissolution, and certifying that upon obtaining such written release, it shall no Default has occurred and is continuing, then no reduction of the Commitments shall longer be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of a Guarantor for any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)purpose hereunder.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company Borrower will not, and will not permit any of the Subsidiaries Secured Credit Party to, directly or indirectly (i) consolidate or merge with, with or into any other Person or (ii) sell, lease lease, license or otherwise dispose transfer, directly or indirectly, (A) any Accounts or any lockbox or deposit (or similar) accounts into which are deposited from time to time or which contain any cash representing Accounts or the proceeds thereof (the Accounts, lockboxes and deposit (or similar) accounts described in this clause (ii)(A) are hereinafter referred to as the "ACCOUNT COLLATERAL") or (B) all or substantially all of the Companies' assets, taken as a whole; provided that nothing contained in this Section 5.6 shall prohibit (a) mergers between Restricted Companies or transfers of assets between Restricted Companies, (b) the liquidation or dissolution of any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person Secured Credit Party (other than Borrower) (provided that the Company or a SubsidiaryAgent's Lien on the Collateral shall continue unaffected by such transfer), except that, or (c) so long as no Event of Default would result under any other provision of this Agreement:
(a) any Person may merge with and into the Company exists before or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transactionthereto, the aggregate amount transfer of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets (other than Account Collateral) of a Restricted Subsidiary to an Unrestricted Subsidiary. Notwithstanding anything set forth in this Section 5.6 to the Company contrary, a Secured Credit Party (other than the Borrower) may transfer Account Collateral of such Secured Credit Party in connection with the transfer of all assets of such Secured Credit Party pursuant to a transaction otherwise permitted under this Credit Agreement; provided that (i) neither an over-advance nor an Event of Default shall have occurred and the Subsidiaries having been sold be continuing or otherwise disposed ofwould result from such transfer, (ii) no immediately upon such transaction transfer, all transferred Accounts shall result in a reduction in be excluded from the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of Borrowing Base, and (iii) except at least 5 Businesses Days prior to such transfer, the Borrower shall provide Agent with (x) a Borrowing Base Certificate evidencing the fact that, both before and after giving effect to the transfer of such Accounts and the exclusion therefrom from the Borrowing Base, Revolving Loan Outstandings do not exceed the Revolving Loan Limit and (y) evidence, in form and substance reasonably acceptable to Agent, that cash collections with respect to such transferred Accounts will not be commingled with cash collections continuing to be included in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the Borrowing Base after giving effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)transfer.
Appears in 1 contract
Samples: Credit Agreement (Radiologix Inc)
Consolidations, Mergers and Sales of Assets. The Company will notNo Credit Party will, and will not permit any of the Subsidiaries todirectly or indirectly, (a) consolidate or merge withor amalgamate with or into any other Person, or sell(b) consummate any Asset Dispositions involving any Collateral, lease or otherwise dispose of except: (i) any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person Credit Party (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
(aParent) any Person may merge with and into the Company into, or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantortransfer assets to, as the case may be, is the surviving Person;
another Credit Party (b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantorto Parent); provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in Credit Party that is a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary production services company may sell, lease or otherwise dispose of any of its assets for fair value (other than dissolve so long as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company and the Subsidiaries having been sold or otherwise disposed ofowned by such production services company, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company if any, are disposed of and transferred to another Credit Party; (iii) except in the case of an Excluded Divestiture or any Borrower that is a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business production services company may dissolve so long as all of the Company assets owned by such Borrower, if any, are transferred to another Credit Party or sold for fair market value; (iv) dispositions of any non-material items of Collateral; (v) the granting of Permitted Liens and making of Permitted Investments; and (vi) from time to time after the SubsidiariesClosing Date, and certifying that provided no Default or Event of Default has occurred and is continuing, then no reduction the Credit Parties may transfer their interest in any Collateral to any SPV Affiliate or other Person in connection with a Third Party Financing Facility; provided that:
(A) any Guarantees of any of the Commitments shall be required pursuant Debt or other obligations of such SPV Affiliate under such Third Party Financing Facility by a Credit Party are unsecured and subject to this clause (iiih) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” Permitted Contingent Obligations”;
(calculated as B) the Debt or other obligations under such Third Party Financing Facility are secured by a security interest solely in such Collateral (and not by any of the date assets of any Credit Party other than the Equity Interests in such SPV Affiliate);
(C) within thirty (30) days after such Third Party Financing Facility has been repaid in full (collectively, “SPV Repayment”), the Credit Parties shall cause (i) such SPV Affiliate to assign all of its rights in such Collateral to a Credit Party or become a Credit Party hereunder or (ii) such other Person to assign its rights in such Collateral to a Credit Party;
(D) the material terms of such Third Party Financing Facility shall otherwise be on terms and conditions customary for transactions of such type;
(E) after giving pro forma effect to such transaction, the Borrowers are in compliance with the terms of this Agreement (including, without limitation, the financial covenant set forth in Article 6); and
(F) promptly after the closing of such Third Party Financing Facility, the Agent shall be provided with an executed copy of the disposition giving rise documentation evidencing such Third Party Financing Facility (subject to any applicable confidentiality restrictions) and of the documents evidencing the transfer of the Credit Parties’ rights in such Net Proceeds)Collateral to the SPV Affiliate; provided, that, in connection with any such Third Party Financing Facility, the Agent shall enter into or provide such further documentation, including partial lien subordination or intercreditor arrangements, as the financial institution(s) providing such Third Party Financing Facility (or any collateral agent therefor) may reasonably request, which shall be in form and substance satisfactory to the Agent.
Appears in 1 contract
Samples: Credit, Security and Guaranty Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Consolidations, Mergers and Sales of Assets. The Company Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, consolidate or merge withwith or into, or sell, lease or otherwise dispose of effect any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary Asset Sale to, any Person (other than the Company Person, or a Subsidiary)discontinue or eliminate any Operating Subsidiary or business segment, except provided that, so long as no Default would result under any other provision of this Agreement:
(a) any Person the Borrower may merge with and into another Person if (i) such Person was organized under the Company laws of the United States of America or any Subsidiary Guarantor; provided that one of its states, (ii) the Company or such Subsidiary Guarantor, as the case may be, Borrower is the corporation surviving Personsuch merger and (iii) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing;
(b) any Person other than the Company or a Subsidiary Guarantor Restricted Subsidiaries may merge with with, and into sell assets to, one another and the Borrower, provided that the surviving Person or transferee in any Subsidiary that such transaction is a Credit Party or, if such surviving Person or transferee is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07Credit Party, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) then after giving effect to such transaction, the aggregate amount Borrower shall be in compliance with the requirements of minority equity interests in Section 5.3 and Section 6.4;
(c) the Borrower and its Subsidiaries may eliminate or discontinue business lines and segments from time to time if (excluding i) such action has been approved by the Board of Directors of the Borrower, and (ii) such elimination or discontinuance will not jeopardize the Borrower’s ability to perform under any of the Loan Documents;
(d) so long as no Event of Default shall then have occurred and be continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may effect any Asset Sale so long as the value of the assets sold (measured at the book value for such interests sold in a Permitted AEC Transactionassets) pursuant to all such Asset Sales during any Fiscal Year does not exceed 7.5% ten percent (10%) of Consolidated Tangible Net Worththe book value of the consolidated total assets of the Borrower as of the end of the immediately preceding Fiscal Year; and
(ie) in addition to Restricted Subsidiaries which are formed for the foregoing, the Company sole purpose of (1) merging into Persons that will become Subsidiaries or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a2) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of acquiring the assets of the Company and the Subsidiaries having been sold or otherwise disposed of, stock (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01limited liability company, the Commitments shall be reduced pursuant to Section 2.08(bmembers’ equivalent equity interests) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company Persons and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the thereafter becoming Subsidiaries, may merge with such Persons or consolidate those Persons’ assets with the assets of those Subsidiaries so long as such acquisitions and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to related transactions are otherwise permitted by this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)Agreement.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. (a) The Company Borrower will not (i) consolidate or merge with or into any other Person or (ii) sell, lease or otherwise transfer, directly or indirectly, all or substantially all of its assets to any Person; provided that the Borrower may merge with another Person if the Borrower is the entity surviving such merger (except in the case of a merger of the Borrower with the Parent, in which case the Parent may be the surviving entity) and, after giving effect thereto, no Event of Default or Default shall have occurred and be continuing.
(b) The Borrower will not permit any of its Restricted Subsidiaries to consolidate or merge with any other Person (except with the Borrower or another Restricted Subsidiary, but subject to the provisions of Sections 5.07 and 5.09(a)) or sell all or substantially all of their respective assets (except to the Borrower or another Restricted Subsidiary, subject to the provisions of Section 5.07, or except as a Permitted MLP Asset Transfer) if, after giving effect thereto, (i) any Event of Default or Default shall have occurred and be continuing or (ii) such consolidation, merger or sale of assets, taken as a whole together with all other consolidations, mergers and sales of assets by the Borrower and its Restricted Subsidiaries since the Effective Date, shall result in the disposition by the Borrower and its Restricted Subsidiaries of assets in an amount that would constitute all or substantially all of the consolidated assets of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of the most recently completed fiscal quarter.
(c) The Borrower will not, and will not permit any of the its Restricted Subsidiaries to, consolidate or merge with, or sell, lease or otherwise dispose of (i) sell any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, of Texas Eastern or Algonquin to any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
(a) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Restricted Subsidiary Guarantor; provided that such Subsidiary is of the surviving Person;
(c) subject to Section 6.07, the Company Borrower or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in sell all or substantially all of the assets of the Company and the Subsidiaries having been sold Texas Eastern or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)Algonquin.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company Borrower will not, and nor will not the Borrower permit any of the its Material Subsidiaries to, consolidate or merge with or into, or effect any Asset Sale to, any other Person, or discontinue or eliminate any Material Subsidiary or business segment, provided that:
(a) the Borrower may merge with another Person if (i) the Borrower is the corporation surviving such merger and (ii) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing;
(b) Subsidiaries (i) may merge with, or sell, lease or otherwise dispose of any of its and sell assets to, or, in the case of a another Subsidiary, issue or sell any Equity Interests provided that if one of the Persons involved in such Subsidiary merger or sale is a Credit Party, the surviving Person or transferee in any such transaction is or becomes by virtue thereof a Credit Party, (ii) may merge with, and sell assets to, the Borrower, so long as the surviving Person or transferee in any such transaction is the Borrower, and (iii) may merge with another Person (other than the Company Borrower or a another Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
) if (ax) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the Person surviving Personsuch merger or such Person becomes a Subsidiary by virtue thereof, and (y) no Default or Event of Default shall have occurred and be continuing;
(c) subject the Borrower and its Subsidiaries may eliminate or discontinue business lines and segments from time to Section 6.07, the Company time if such elimination or any Subsidiary may sell, lease or otherwise dispose of any of its assets discontinuance could not reasonably be expected to the Company or any other Subsidiaryhave a Material Adverse Effect;
(d) so long as no Event of Default shall then have occurred and be continuing or would result therefrom, the Company or Borrower and its Subsidiaries may effect any Subsidiary may sellAsset Sale so long as the assets to be sold pursuant to all such Asset Sales during any Fiscal Year have not contributed, lease or otherwise dispose of any of its inventory in the ordinary course aggregate, more than twenty-five percent (25%) of business and any the EBITDA of its assets the Borrower for the then-most recently completed period of four consecutive Fiscal Quarters for which financial statements are obsolete, excess or unserviceable;available (with the determination of such contribution to EBITDA to be made by the Borrower in a manner reasonably acceptable to the Administrative Agent); and
(e) any Foreign Subsidiary may sell Receivables in one Subsidiaries which are formed for the sole purpose of (1) merging into Persons that will become Subsidiaries or more transactions in (2) acquiring the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company assets or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiaryof Persons and thereafter becoming Subsidiaries, and any Subsidiary may issue and sell its Equity Interests, to one merge with such Persons or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its consolidate those Persons' assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company those Subsidiaries so long as such acquisitions and the Subsidiaries having been sold or related transactions are otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly permitted by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)Agreement.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company No Obligor will not, and will not permit any of the Subsidiaries to, (a) consolidate or merge with, with or sell, lease or otherwise dispose of into any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary)Person, except that:
(i) PFLLC may consolidate or merge with or into (A) PICA if PICA is the surviving corporation or (B) another Subsidiary if (1) PFLLC is the surviving corporation or (2) (x) prior thereto, PICA shall have executed and delivered a PICA Assumption Agreement or (y) the Subsidiary that is the surviving corporation shall assume all of the obligations of PFLLC hereunder and either (I) PICA agrees in writing that such Subsidiary shall have all of the benefits of the PICA Support Agreement or (II) PICA executes a PICA Guarantee Agreement modified in such manner as shall be satisfactory to the Required Banks to reflect the fact that such Subsidiary shall thereafter be a Borrower hereunder; provided that after giving effect thereto, no Default shall have occurred and be continuing; Table of Contents
(ii) PFI may consolidate or merge with or into any other Person so long as no Default would result under any other provision of this Agreement:
(a) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is PFI shall be the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07corporation and, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to thereto, no Default shall have occurred and be continuing; and
(iii) if PFI consolidates or merges with or into any other Person and PFI is not the surviving corporation, PFI may nonetheless consolidate or merge with or into another Person if immediately after such transaction the Person or Persons that “beneficially owned” (as defined in Rules 13d-3 and (ii13d-5 under the Exchange Act) after giving effect immediately prior to such transaction, directly or indirectly, the aggregate amount then outstanding voting Equity Interests of minority equity interests in Subsidiaries PFI “beneficially own” (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5as so determined), directly or indirectly, more than 50% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, total voting power of the Company or any Subsidiary may sell, lease or otherwise dispose then outstanding Equity Interests of any of its assets for fair value (other than as permitted by clauses (a) through (h) above)the surviving Person; provided that after giving effect thereto, no Default shall have occurred and be continuing and the surviving corporation (iwhich shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) no such transaction, when taken together with all previous such transactions, shall result in all or substantially expressly assume all of the assets obligations of the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transactionPFI hereunder; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds).or
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company will not, and will not permit (a) Neither the Borrower nor any of the its Subsidiaries to, will consolidate or merge withwith or into any other Person, except that if, after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary of the Borrower may be merged into the Borrower if the Borrower is the surviving corporation, (ii) any Subsidiary of the Borrower may merge with any other corporation (other than the Borrower) if such Subsidiary is the surviving corporation; provided, that if a Guarantor is a party to any such merger, such Guarantor shall be the surviving corporation and (iii) Permitted Acquisitions and asset dispositions permitted pursuant to subsection (b) of this Section may be consummated in the form of a merger, as long as, in the event of a Permitted Acquisition, the Borrower or a Subsidiary is the surviving Person, provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 5.09 and provided further that any such merger involving a Person that is a Guarantor shall not be permitted unless such Guarantor is the surviving Person.
(b) Neither the Borrower nor any of its Subsidiaries will sell, lease or otherwise dispose of transfer any of its assets toasset, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreementexcept:
(ai) any Person may merge in the ordinary course of its business (which ordinary course shall include the sale or other disposition of obsolete or excess inventory or intellectual property, fixtures or equipment to the extent ordinary and consistent with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Personpast practice);
(bii) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is sale of assets, not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets not otherwise permitted hereunder, which are obsolete, excess or unserviceablefrom and after the Effective Date do not in the aggregate exceed $25,000,000;
(eiii) any Foreign Subsidiary may sell Receivables in one or more transactions in transfers made as Investments permitted by Section 5.09, Restricted Payments permitted by Section 5.14 and the ordinary course repurchase of business and consistent the common stock of the Borrower with past practice, the proceeds of which transactions are used for working capitalthe Convertible Bonds;
(fiv) transfer of intellectual property by Borrower, DF Enterprises, Inc. or FD Management, Inc. to a Subsidiary (including any Foreign Subsidiary) provided that (A) the Company Borrower furnish the Agents written notice of such transfer at least 10 days prior thereto and copies of the Subsidiaries agreements evidencing such transfer; and (B) the Borrower shall have taken such action as the Administrative Agent may carry out sale and leaseback transactions permitted request to ensure that the Collateral Agent will be able to utilize the intellectual property in question pursuant to the license granted under Section 6.06 and may make investments permitted under Section 6.07;the Security Agreement to liquidate the Inventory; or
(gv) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoingextent not otherwise permitted in clauses (i) through (iv) of this clause (b), (1) transfers of assets by the Company Borrower or any Subsidiary may sell to Borrower or otherwise dispose to a Domestic Subsidiary or by one Foreign Subsidiary to another Foreign Subsidiary and (2) transfers of Equity Interests in assets acquired after the Effective Date by the Borrower or any Subsidiary, and any Domestic Subsidiary may issue and sell its Equity Interests, to one a Foreign Subsidiary if: (A) no Default exists or more Persons other than the Company and the Subsidiaries if would result; (iB) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction assets transferred do not include Accounts or Inventory owned by the Borrower and located in the United States, Puerto Rico, or Canada; (iiC) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding assets transferred do not include any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to intellectual property necessary for the foregoing, the Company manufacture or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all sale of the assets of Inventory unless the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no Borrower shall have take such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to action as the Administrative Agent a certificate of a Financial Officer may request to ensure that the Collateral Agent will be able to utilize the intellectual property in question pursuant to the effect that license granted under the Company Security Agreement or otherwise to liquidate the Inventory; (D) with respect to any such transfer involving the Borrower and the Domestic Subsidiaries intend to apply described in clause (1) hereto, the Net Proceeds from such disposition (party receiving the assets transferred shall be the Borrower or a portion thereof specified in Guarantor or simultaneously with such certificate), within 180 days after receipt of transfer will become a Guarantor and party to the Security Agreement; and (E) with respect to any such Net Proceeds, to acquire real property, equipment or other assets to be used in transfer involving the business of the Company Borrower and the SubsidiariesDomestic Subsidiaries to a Foreign Subsidiaries described in clause (2) hereto, the party transferring the assets shall receive fair market value for the assets being transferred and certifying that the transaction shall be upon fair and reasonable terms no Default has occurred and is continuing, then no reduction of the Commitments less favorable to such party than such party would obtain in a comparable arm’s–length transaction with a Person not an Affiliate. No Foreign Subsidiary shall be required pursuant to become a Guarantor under this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)Section 5.11.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company No Loan Party will, nor will not, and will not it permit any Subsidiary of the Subsidiaries a Loan Party (other than a Structured Subsidiary) to, consolidate or merge withwith or into, or sell, lease or otherwise dispose of transfer all or any substantial part of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
Person, or discontinue or eliminate any business line or segment, provided that (a) any Person pursuant to the consummation of an Acquisition permitted under Section 5.08 (but not otherwise) a Loan Party may merge with and into another Person if (i) such Person was organized under the Company laws of the United States of America or any Subsidiary Guarantor; provided that one of its states, (ii) the Company or such Subsidiary Guarantor, as the case may be, Loan Party is the Person surviving Person;
such merger, (iii) immediately after giving effect to such merger, no Default shall have occurred and be continuing, and (iv) if the Borrower merges with another Loan Party, the Borrower is the Person surviving such merger; (b) any Person other than the Company or Subsidiaries of a Subsidiary Guarantor Loan Party (excluding Loan Parties) may merge with one another; and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sellforegoing limitation on the sale, lease or otherwise dispose other transfer of any assets and on the discontinuation or elimination of its a business line or segment shall not prohibit (1) a transfer of assets to or the Company discontinuance or any other Subsidiary;
elimination of a business line or segment (din a single transaction or in a series of related transactions) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business of the Borrower and any its Subsidiaries (other than Structured Subsidiaries) if, after giving effect thereto the Borrower and its Subsidiaries shall be in compliance on a pro forma basis, after giving effect to such transfer, discontinuation or elimination, with the terms and conditions of its assets which are obsolete, excess or unserviceable;
this Agreement and (e2) any Foreign Subsidiary may sell Receivables in one or more transactions divestitures of Portfolio Investments in the ordinary course of business of the Borrower and consistent its Subsidiaries (other than Structured Subsidiaries) if, after giving effect thereto (and to any concurrent acquisitions of Portfolio Investments or payments of outstanding Loans or Other Covered Indebtedness) the (A) Borrower and its Subsidiaries shall be in compliance on a pro forma basis, after giving effect to any such divestiture, with past practicethe terms and conditions of this Agreement, and (B) the Covered Debt Amount does not exceed the Borrowing Base; provided, however, that upon the occurrence and during the continuance of a Default or an Event of Default, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoingBorrower shall not sell, the Company or any Subsidiary may sell transfer or otherwise dispose of Equity Interests in any Subsidiaryasset (including without limitation any Portfolio Investment) without the prior written consent of the Administrative Agent. Notwithstanding the foregoing, a Loan Party may sell, transfer or otherwise dispose of Portfolio Investments originated or purchased by the Borrower and any transferred to a Structured Subsidiary may issue so long as (x) prior to and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction sale, transfer or other disposition (and (iiany concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) Covered Debt Amount does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) Borrowing Base and no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company Default exists and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver Borrower delivers to the Administrative Agent a certificate of a Financial Responsible Officer to such effect, and (y) either (i) the effect that amount by which the Company and Borrowing Base exceeds the Subsidiaries intend Covered Debt Amount immediately prior to apply the Net Proceeds from such disposition (or release is not diminished as a portion thereof specified in such certificate), within 180 days after receipt result of such Net Proceeds, release or (ii) the Borrowing Base immediately after giving effect to acquire real property, equipment or other assets to be used in the business such release is at least 100% of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)Covered Debt Amount.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company Neither Borrower will, nor will not, and will not either Borrower permit any of the its Material Subsidiaries to, consolidate or merge withwith or into, or sell, lease or otherwise dispose of effect any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary Asset Sale to, any Person (other than the Company Person, or a Subsidiary)discontinue or eliminate any Material Subsidiary or business segment, except provided that, so long as no Default would result under any other provision of this Agreement:
(a) any Person either Borrower may merge with and into another Person (except the Company or any Subsidiary Guarantor; provided that the Company or other Borrower) if (i) such Subsidiary Guarantor, as the case may be, Borrower is the corporation surviving Personsuch merger and (ii) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing;
(b) Subsidiaries (i) may merge with, and sell assets to, another Subsidiary, provided that if one of the Persons involved in such merger or sale is a Credit Party, the surviving Person or transferee in any such transaction is a Credit Party, (ii) may merge with, and sell assets to, a Borrower, so long as the surviving Person other than the Company or a Subsidiary Guarantor transferee in any such transaction is such Borrower, and (iii) may merge with and into any Subsidiary that is not another Person (other than a Subsidiary Guarantor; provided that Borrower or another Subsidiary) if (x) such Subsidiary is the Person surviving Personsuch merger, and (y) no Default or Event of Default shall have occurred and be continuing;
(c) subject to Section 6.07, the Company and its Subsidiaries may eliminate or any Subsidiary may sell, lease discontinue business lines and segments from time to time if such elimination or otherwise dispose of any of its assets discontinuance could not reasonably be expected to the Company or any other Subsidiaryhave a Material Adverse Effect;
(d) the Company so long as no Event of Default shall then have occurred and be continuing or any Subsidiary may sellwould result therefrom, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the its Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
effect any Asset Sale so long as the assets to be sold pursuant to all such Asset Sales during any Fiscal Year have not contributed, in the aggregate, more than fifteen percent (g15%) of the EBITDA of the Company and for the Subsidiaries may carry out then-most recently completed period of four consecutive Fiscal Quarters for which financial statements are available (with the determination of such contribution to EBITDA to be made by the Company in a Permitted AEC Transaction;
(h) in addition manner reasonably acceptable to the foregoingAdministrative Agent); provided, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiaryhowever, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
that (i) in addition to determining the foregoingCompany's compliance with the foregoing limitation on Asset Sales in any Fiscal Year, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of deduct from the EBITDA attributable to the assets of sold in such Asset Sales, an amount equal to the EBITDA attributable to Permitted Acquisitions made or proposed to be made by the Company and its Subsidiaries within 180 days after consummation of the Subsidiaries having been sold or otherwise disposed ofrespective Asset Sale and with the proceeds of such Asset Sale (with the determination of the EBITDA attributable to such Permitted Acquisition to be made by the Company in a manner reasonably acceptable to the Administrative Agent), (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of if and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds extent, absent such deduction in clause (i) with respect to such proposed Permitted Acquisitions, a breach of each such transaction; provided that if this Section 7.03(d) would occur, the Company shall deliver to provide the Administrative Agent a certificate of a Financial Officer to Agent, not later than the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end expiration of such 180-day period, at which time a reduction report in reasonable detail as to such proposed Permitted Acquisitions, if any, and to the extent all or any portion of the Commitments proposed Permitted Acquisitions (or any other Permitted Acquisitions) are not so made within such 180 day period, then only the EBITDA attributable to Permitted Acquisitions made shall be required deducted for purposes of determining whether the Company is in an amount equal compliance with the 15% limitation set forth above for the Fiscal Year during which such Asset Sales occurred, and (iii) the UK Borrower must continue to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) be a wholly-owned direct or indirect Subsidiary of the definition Company;
(e) Subsidiaries which are formed for the sole purpose of “Pro Rata Proceeds” (calculated 1) merging into Persons that will become Subsidiaries or (2) acquiring the assets or Equity Interests of Persons and thereafter becoming Subsidiaries, may merge with such Persons or consolidate those Persons' assets with the assets of those Subsidiaries so long as such acquisitions and related transactions are otherwise permitted by this Agreement; and
(f) any Asset Sale made as a result of the exercise of the Joint Venture Call Right with respect to the assets or Equity Interests of the Subsidiary that are subject to such Joint Venture Call Right; provided, however, that if after giving effect to such Asset Sale, the Leverage Ratio (computed on a pro forma basis as of the date last day of the disposition giving rise most recently ended period of four consecutive Fiscal Quarters for which financial statements are available) would exceed 2.00 to 1.00, then the Company shall, not later than ten (10) Business Days after such Asset Sale is consummated, provide written notice thereof to the Administrative Agent and, unless such prepayment is waived in writing by the Administrative Agent (acting at the direction of the Required Lenders) within ten (10) Business Days after its receipt of such notice, the Company shall prepay or cause to be prepaid an amount of its outstanding Indebtedness in the form of term loans used to finance the purchase of the assets subject to such Net ProceedsAsset Sale (with payment to be applied pro rata across maturities) or, if no such term loans are then outstanding, Indebtedness under this Agreement (with payment to be applied pro rata across Term Loans and maturities) or any other Indebtedness (but without any required reduction in the commitments from the lenders that are parties to any revolving credit facilities) equal to the lesser of (x) the amount necessary to be prepaid to reduce such Leverage Ratio to 2.00 to 1.00, (y) the net cash proceeds received by the Company and its Subsidiaries from such Asset Sale (after giving effect to any costs, fees and expenses associated therewith and any Indebtedness repaid in connection therewith), and (z) the total amount of Indebtedness then outstanding as term loans used to finance the purchase of the assets subject to such Asset Sale and advances under this Agreement.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company will not, and will not permit Neither the Borrower nor any of the Subsidiaries to, Guarantors will consolidate or merge withwith or into, or acquire all or substantially all of the assets or stock of any other Person, or sell, lease or otherwise dispose of any of its assets to, or, in the case of a Subsidiary, issue transfer all or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:any
(ai) any Person the Borrower may merge with and into another Person if (x) such Person was organized under the Company laws of the United States of America or any Subsidiary Guarantor; provided that one of its states, (y) the Company or such Subsidiary Guarantor, as the case may be, Borrower is the corporation surviving Personsuch merger and (z) immediately after giving effect to such merger, no Default shall have occurred and be continuing;
(bii) any Person other than the Company or a Subsidiary Guarantor Guarantors may merge with one another, and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary Guarantors may sell, lease or otherwise dispose of any of its transfer assets to the Company or any other SubsidiaryBorrower;
(diii) any sale for cash only of Property by JDN DCI, pursuant to reasonable terms which are no less favorable to JDN DCI than would be obtained in a comparable arm's length transaction with a Person which is not an Affiliate, for fair market value (as determined in good faith by the Company Board of Directors of JDN DCI or any Subsidiary may sellthe Borrower or an Executive Committee thereof), lease provided that the proceeds thereof are -------- used by JDN DCI, or are distributed by JDN DCI to the Borrower or a Guarantor to be used by it, for the purchase of comparable property, to repay Debt or to fund new development, or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used to be retained by it for working capital;
(fiv) the Company and sale by the Subsidiaries may carry out Borrower or a Guarantor of a Relinquished Property as part of a Section 1031 Exchange; provided that such sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07-------- is pursuant to reasonable terms which are no less favorable to the Borrower or such Guarantor than would be obtained in a comparable arm's length transaction with a Person which is not an Affiliate, for fair market value (as determined in good faith by the Board of Directors of the Borrower or such Guarantor or an Executive Committee thereof), provided that the proceeds thereof -------- are used by the Borrower or such Guarantor for the purchase of Replacement Property;
(gv) the Company and foregoing limitation on the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to acquisition of all or substantially all the foregoingassets or stock of another Person shall not prohibit, during any Fiscal Quarter, the Company or any Subsidiary may sell or otherwise dispose acquisition of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets or stock of another Person unless the aggregate assets or stock acquired in a single acquisition or series of related acquisitions of all or substantially all of the Company assets or stock of another Person by the Borrower and the Subsidiaries having been sold Guarantors during such Fiscal Quarter constituted more than 20% of Gross Asset Value at the end of the most recent Fiscal Quarter immediately preceding such Fiscal Quarter;
(vi) the foregoing limitation on the sale, lease or otherwise disposed ofother transfer of assets shall not prohibit, during any Fiscal Quarter, a transfer of assets (ii) no such transaction shall result in a reduction single transaction or in a series of related transactions) unless the aggregate assets to be so transferred, when combined with all other assets transferred, by the Borrower and the Guarantors during such Fiscal Quarter and the immediately preceding 3 Fiscal Quarters (but in each case excluding transfers permitted under clauses (i) through (iv) above), constituted more than 25% of Gross Asset Value at the end of the most recent Fiscal Quarter immediately preceding such Fiscal Quarter. In the case of any Guarantor which transfers substantially all of its assets pursuant to clause (vi) of the preceding sentence, and in the percentage case of any Guarantor the stock of which is being sold and with respect to which clause (vi) would have been satisfied if the transaction had been a sale of assets of such Guarantor, such Guarantor may dissolve and shall be entitled to obtain from the Agent a written release from the Guaranty, provided that -------- it can demonstrate to the reasonable satisfaction of the Equity Interests of Agent that (A) it has repaid in full all Debt owed to the Borrower or any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of other Guarantor and (iiiB) except such sale was for cash and in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01asset transfer, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal net cash proceeds received in connection therewith are being distributed to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt Borrower as part of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiariesdissolution, and certifying that upon obtaining such written release, it shall no Default has occurred and is continuing, then no reduction of the Commitments shall longer be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of a Guarantor for any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)purpose hereunder.
Appears in 1 contract
Samples: Credit Agreement (JDN Realty Corp)
Consolidations, Mergers and Sales of Assets. The Company will not(i) (A) Consolidate or merge with or into any other Person, and will not permit any unless the Representative or, except in the case of a merger or consolidation to which the Representative is a party, a Wholly-Owned Subsidiary of the Subsidiaries to, consolidate or merge withRepresentative is the surviving corporation, or (B) sell, lease or otherwise dispose transfer all or any substantial part of the assets of the Representative and its Subsidiaries (including the other Bevexxx Entities), taken as a whole, to any other Person, provided that (I) this Section shall not apply to mergers, dissolutions, reorganizations or liquidations of Subsidiaries of the Representative that have disposed of all or substantially all of their assets in accordance with the terms of this Agreement, (II) the Representative and its Subsidiaries (other than Pharmacy or any of its assets toSubsidiaries) may assign or grant security interests in their Medicare, Medicaid or other patient accounts receivable to a Special Purpose Receivables Financing Subsidiary to secure Permitted Receivables Financing Securities (provided that the net amount at any time of all uncollected accounts receivable owing to the Representative or any of its Subsidiaries that are so assigned or in which a security interest is so granted shall not exceed 200% of the aggregate principal or redemption amount of all Permitted Receivables Financing Securities then outstanding) and (III) this Section shall not prohibit the consummation of the Pharmacy Divestiture Transaction or the Merger on the Release Date.
(ii) So long as Pharmacy is a Wholly-Owned Subsidiary of the Representative, permit Pharmacy or any of its Subsidiaries to (A) consolidate or merge with or into any other Person, unless Pharmacy or, except in the case of a Subsidiarymerger or consolidation to which Pharmacy is a party, issue or sell any Equity Interests in such a Wholly-Owned Subsidiary to, any Person (other than the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
(a) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, Pharmacy is the surviving Person;
corporation or (bB) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease or otherwise dispose of transfer all or any substantial part of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons Person other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)Pharmacy.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company will not, and will not permit (a) Neither the Borrower nor any of the its Subsidiaries to, will consolidate or merge withwith or into any other Person, except that if, after giving effect thereto, no Default shall have occurred and be continuing, (i) any Subsidiary of the Borrower may be merged into the Borrower if the Borrower is the surviving corporation, (ii) any Subsidiary of the Borrower may merge with any other corporation (other than the Borrower) if such Subsidiary is the surviving corporation; provided, that if a Guarantor is a party to any such merger, such Guarantor shall be the surviving corporation and (iii) Permitted Acquisitions and asset dispositions permitted pursuant to subsection (b) of this Section may be consummated in the form of a merger, as long as, in the event of a Permitted Acquisition, the Borrower or a Subsidiary is the surviving Person, provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 5.09 and provided further that any such merger involving a Person that is a Guarantor shall not be permitted unless such Guarantor is the surviving Person.
(b) Neither the Borrower nor any of its Subsidiaries will sell, lease or otherwise dispose of transfer any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary)asset, except that, so long as no Default would result under any other provision of this Agreement:
(ai) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of its business (which ordinary course shall include the sale or other disposition of obsolete or excess inventory or intellectual property, fixtures or equipment to the extent ordinary and any consistent with past practice), (ii) sale of its assets which are obsoleteassets, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions not in the ordinary course of business business, which from and consistent with past practiceafter the effective date of the Original Credit Agreement do not in the aggregate exceed $25,000,000, the proceeds of which transactions are used for working capital;
(fiii) the Company and the Subsidiaries may carry out sale and leaseback transactions transfers made as Investments permitted under by Section 6.06 and may make investments 5.09 or Restricted Payments permitted under by Section 6.07;
5.14, or (giv) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoingextent not otherwise permitted in clauses (i) through (iii) of this clause (b), transfers of assets by the Company Borrower or any Subsidiary may sell to Borrower or otherwise dispose of Equity Interests in any Subsidiary, and any to a Domestic Subsidiary may issue and sell its Equity Interests, or by one Foreign Subsidiary to one another Foreign Subsidiary if: (A) no Default exists or more Persons other than the Company and the Subsidiaries if would result; (iB) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company assets transferred do no include Accounts or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds).Inventory;
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company (a) No Credit Party will, or will not, and will not permit any of the Subsidiaries Subsidiary to, directly or indirectly consolidate or merge with, or sell, lease amalgamate with or otherwise dispose of into any of its assets to, or, other Person other than (a) consolidations or mergers among Borrowers where a Borrower is the surviving entity (provided that in the case of any consolidation or merger involving Holdings, Holdings shall be the surviving entity), (b) consolidations or mergers among a SubsidiaryGuarantor and a Borrower so long as the Borrower is the surviving entity (provided that Parent may not merge into any Borrower), issue (c) consolidations or sell mergers among Guarantors where the Guarantor is the surviving entity (provided that in the case of any Equity Interests in such Subsidiary toconsolidation or merger involving Parent, any Person Parent shall be the surviving entity), (d) consolidations or mergers among Excluded Subsidiaries, (e) dissolutions or liquidations of Credit Parties (other than the Company Borrowers) or a Subsidiary), except that, their Subsidiaries so long as no Default would result under any other provision assets of this Agreement:
such dissolved or liquidated Person are transferred to a Borrower or another Credit Party and (af) any Person may merge with consolidations and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;mergers necessary to effect a Permitted Internal Reorganization.
(b) No Credit Party will, or will permit any Person Subsidiary to, directly or indirectly consummate any Asset Dispositions other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary GuarantorPermitted Asset Dispositions; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or no Credit Party shall consummate any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if Asset Disposition unless (i) the applicable Subsidiary remains a Subsidiary after giving effect to no Default or Event of Default exists or would result from such transaction Asset Disposition and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets Asset Dispositions shall be made for fair value and for at least 75% cash consideration; it being understood that the following shall be deemed to be cash consideration: (A) any liabilities (as shown on Parent’s most recent balance sheet provided hereunder or in the footnotes thereto) of the applicable Credit Party or Subsidiary, other than as permitted liabilities that are by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result their terms subordinated to the payment in all or substantially all full of the assets Obligations, that are assumed by the transferee with respect to the applicable disposition and for which Parent and its Subsidiaries shall have been validly released by all applicable creditors in writing and (B) aggregate non-cash consideration received by the applicable Credit Party or Subsidiary having an aggregate fair market value (determined as of the Company and closing of the Subsidiaries having been sold applicable disposition for which such non-cash consideration is received) not to exceed $5,000,000; provided, further that any Permitted Asset Disposition resulting in the sale, transfer or otherwise disposed of, (ii) no such transaction disposition of Collateral that is part of the Borrowing Base shall result in a corresponding reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least Borrowing Base equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt fair market value of such Net Proceeds, to acquire real property, equipment or other assets to be used in Collateral and Credit Parties shall submit an updated Borrowing Base Certificate evidencing the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds removal of such disposition (or Collateral from the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds)Borrowing Base.
Appears in 1 contract
Samples: Credit, Security and Guaranty Agreement (Wright Medical Group N.V.)
Consolidations, Mergers and Sales of Assets. The Company Neither Borrower will, nor will not, and will not either Borrower permit any of the its Material Subsidiaries to, consolidate or merge withwith or into, or sell, lease or otherwise dispose of effect any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary Asset Sale to, any Person (other than the Company Person, or a Subsidiary)discontinue or eliminate any Material Subsidiary or business segment, except provided that, so long as no Default would result under any other provision of this Agreement:
(a) any Person either Borrower may merge with and into another Person (except the Company or any Subsidiary Guarantor; provided that the Company or other Borrower) if (i) such Subsidiary Guarantor, as the case may be, Borrower is the corporation surviving Personsuch merger and (ii) immediately after giving effect to such merger, no Default or Event of Default shall have occurred and be continuing;
(b) Subsidiaries (i) may merge with, and sell assets to, another Subsidiary, provided that if one of the Persons involved in such merger or sale is a Credit Party, the surviving Person or transferee in any such transaction is a Credit Party, (ii) may merge with, and sell assets to, a Borrower, so long as the surviving Person other than the Company or a Subsidiary Guarantor transferee in any such transaction is such Borrower, and (iii) may merge with and into any Subsidiary that is not another Person (other than a Subsidiary Guarantor; provided that Borrower or another Subsidiary) if (x) such Subsidiary is the Person surviving Personsuch merger, and (y) no Default or Event of Default shall have occurred and be continuing;
(c) subject to Section 6.07, the Company and its Subsidiaries may eliminate or any Subsidiary may sell, lease discontinue business lines and segments from time to time if such elimination or otherwise dispose of any of its assets discontinuance could not reasonably be expected to the Company or any other Subsidiaryhave a Material Adverse Effect;
(d) the Company so long as no Event of Default shall then have occurred and be continuing or any Subsidiary may sellwould result therefrom, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the its Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
effect any Asset Sale so long as the assets to be sold pursuant to all such Asset Sales during any Fiscal Year have not contributed, in the aggregate, more than fifteen percent (g15%) of the EBITDA of the Company and for the Subsidiaries may carry out then-most recently completed period of four consecutive Fiscal Quarters for which financial statements are available (with the determination of such contribution to EBITDA to be made by the Company in a Permitted AEC Transaction;
(h) in addition manner reasonably acceptable to the foregoingAdministrative Agent); provided, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiaryhowever, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5% of Consolidated Tangible Net Worth; and
that (i) in addition to determining the foregoingCompany’s compliance with the foregoing limitation on Asset Sales in any Fiscal Year, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of deduct from the EBITDA attributable to the assets of sold in such Asset Sales, an amount equal to the EBITDA attributable to Permitted Acquisitions made or proposed to be made by the Company and its Subsidiaries within 180 days after consummation of the Subsidiaries having been sold or otherwise disposed ofrespective Asset Sale and with the proceeds of such Asset Sale (with the determination of the EBITDA attributable to such Permitted Acquisition to be made by the Company in a manner reasonably acceptable to the Administrative Agent), (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of if and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds extent, absent such deduction in clause (i) with respect to such proposed Permitted Acquisitions, a breach of each such transaction; provided that if this Section 7.03(d) would occur, the Company shall deliver to provide the Administrative Agent a certificate of a Financial Officer to Agent, not later than the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end expiration of such 180-day period, at which time a reduction report in reasonable detail as to such proposed Permitted Acquisitions, if any, and to the extent all or any portion of the Commitments proposed Permitted Acquisitions (or any other Permitted Acquisitions) are not so made within such 180 day period, then only the EBITDA attributable to Permitted Acquisitions made shall be required deducted for purposes of determining whether the Company is in an amount equal compliance with the 15% limitation set forth above for the Fiscal Year during which such Asset Sales occurred, and (iii) the UK Borrower must continue to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) be a wholly-owned direct or indirect Subsidiary of the definition Company;
(e) Subsidiaries which are formed for the sole purpose of “Pro Rata Proceeds” (calculated 1) merging into Persons that will become Subsidiaries or (2) acquiring the assets or Equity Interests of Persons and thereafter becoming Subsidiaries, may merge with such Persons or consolidate those Persons’ assets with the assets of those Subsidiaries so long as such acquisitions and related transactions are otherwise permitted by this Agreement; and
(f) any Asset Sale made as a result of the exercise of the Joint Venture Call Right with respect to the assets or Equity Interests of the Subsidiary that are subject to such Joint Venture Call Right; provided, however, that if after giving effect to such Asset Sale, the Leverage Ratio (computed on a pro forma basis as of the date last day of the disposition giving rise most recently ended period of four consecutive Fiscal Quarters for which financial statements are available) would exceed 2.00 to 1.00, then the Company shall, not later than ten (10) Business Days after such Asset Sale is consummated, provide written notice thereof to the Administrative Agent and, unless such prepayment is waived in writing by the Administrative Agent (acting at the direction of the Required Lenders) within ten (10) Business Days after its receipt of such notice, the Company shall prepay or cause to be prepaid an amount of its outstanding Indebtedness in the form of term loans used to finance the purchase of the assets subject to such Net ProceedsAsset Sale (with payment to be applied pro rata across maturities) or, if no such term loans are then outstanding, Indebtedness under this Agreement (with payment to be applied pro rata across Term Loans and maturities) or any other Indebtedness (but without any required reduction in the commitments from the lenders that are parties to any revolving credit facilities) equal to the lesser of (x) the amount necessary to be prepaid to reduce such Leverage Ratio to 2.00 to 1.00, (y) the net cash proceeds received by the Company and its Subsidiaries from such Asset Sale (after giving effect to any costs, fees and expenses associated therewith and any Indebtedness repaid in connection therewith), and (z) the total amount of Indebtedness then outstanding as term loans used to finance the purchase of the assets subject to such Asset Sale and advances under this Agreement.
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company No Obligor will not, and will not permit any of the Subsidiaries to, (a) consolidate or merge with, with or sell, lease or otherwise dispose of into any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than the Company or a Subsidiary)Person, except that:
(i) PFLLC may consolidate or merge with or into (A) PICA if PICA is the surviving corporation or (B) another Subsidiary if (1) PFLLC is the surviving corporation or (2) (x) prior thereto, PICA shall have executed and delivered a PICA Assumption Agreement or (y) the Subsidiary that is the surviving corporation shall assume all of the obligations of PFLLC hereunder and either (I) PICA agrees in writing that such Subsidiary shall have all of the benefits of the PICA Support Agreement or (II) PICA executes a PICA Guarantee Agreement modified in such manner as shall be satisfactory to the Required Banks to reflect the fact that such Subsidiary shall thereafter be a Borrower hereunder; provided that after giving effect thereto, no Default shall have occurred and be continuing;
(ii) PFI may consolidate or merge with or into any other Person so long as no Default would result under any other provision of this Agreement:
(a) any Person may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is PFI shall be the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07corporation and, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets to the Company or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries if (i) the applicable Subsidiary remains a Subsidiary after giving effect to thereto, no Default shall have occurred and be continuing; and
(iii) if PFI consolidates or merges with or into any other Person and PFI is not the surviving corporation, PFI may nonetheless consolidate or merge with or into another Person if immediately after such transaction the Person or Persons that “beneficially owned” (as defined in Rules 13d-3 and (ii13d-5 under the Exchange Act) after giving effect immediately prior to such transaction, directly or indirectly, the aggregate amount then outstanding voting Equity Interests of minority equity interests in Subsidiaries PFI “beneficially own” (excluding any such interests sold in a Permitted AEC Transaction) does not exceed 7.5as so determined), directly or indirectly, more than 50% of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, total voting power of the Company or any Subsidiary may sell, lease or otherwise dispose then outstanding Equity Interests of any of its assets for fair value (other than as permitted by clauses (a) through (h) above)the surviving Person; provided that after giving effect thereto, no Default shall have occurred and be continuing and the surviving corporation (iwhich shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) no such transaction, when taken together with all previous such transactions, shall result in all or substantially expressly assume all of the assets obligations of the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transactionPFI hereunder; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets to be used in the business of the Company and the Subsidiaries, and certifying that no Default has occurred and is continuing, then no reduction of the Commitments shall be required pursuant to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated as of the date of the disposition giving rise to such Net Proceeds).or
Appears in 1 contract
Consolidations, Mergers and Sales of Assets. The Company will not(a) Directly or indirectly consolidate with or merge into any other Person, or permit another Person to merge into it, unless it is a Guarantor merging into the Borrower (with the Borrower being the surviving entity) or another Guarantor; provided, that, (i) such entity has provided the Administrative Agent with written notice at least ten (10) Business Days prior to such merger, (ii) all Liens in favor of the Administrative Agent granted by such entities continue to be valid, perfected and first priority (except for pre-existing Liens on the assets of such other Person which are also Permitted Liens, and will not permit (iii) in no event shall ACE Funding merge into Borrower or any Subsidiary of Borrower, (b) acquire all or substantially all the Subsidiaries toEquity Interests or other ownership interests in, consolidate or merge withany other Person (except for Acceptable Acquisitions that also comply with Section 5.11), or (c) sell, lease lease, transfer or assign to any Persons or otherwise dispose of (whether in one transaction or a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired), or (d) otherwise sell any of its assets to, or, in the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary to, any Person (other than assets which are of nominal value or obsolete or are replaced by assets of equal suitability and value; provided, however, that (i) the Company or a Subsidiary), except that, so long as no Default would result under any other provision of this Agreement:
(a) any Person Borrower and its Subsidiaries may merge with and into the Company or any Subsidiary Guarantor; provided that the Company or such Subsidiary Guarantor, as the case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may merge with and into any Subsidiary that is not a Subsidiary Guarantor; provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell, lease sell or otherwise dispose of assets obtained in the Pomegranate Transaction of the type disclosed to the Administrative Agent in writing prior to the Second Amendment Closing Date in an aggregate amount not to exceed the amount disclosed to the Administrative Agent in writing prior to the Second Amendment Closing Date, (ii) in addition to clause (i) immediately preceding, the Borrower and its Subsidiaries may sell only fixed assets (i.e., furniture, fixtures, and equipment), goodwill, and leasehold interests in connection with the disposition of stores in the ordinary course of business (but in no event cash, checks, accounts, receivables or working capital) in an amount not to exceed $7,500,000 in the aggregate in any Fiscal Year, and (iii) any Guarantor may sell or lease any of its assets to the Company Borrower or any other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise dispose of any of its inventory in the ordinary course of business to another Guarantor if and any of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more transactions in the ordinary course of business and consistent with past practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and leaseback transactions permitted under Section 6.06 and may make investments permitted under Section 6.07;
(g) the Company and the Subsidiaries may carry out a Permitted AEC Transaction;
(h) in addition to the foregoing, the Company or any Subsidiary may sell or otherwise dispose of Equity Interests in any Subsidiary, and any Subsidiary may issue and sell its Equity Interests, to one or more Persons other than the Company and the Subsidiaries only if (i) the applicable Subsidiary remains a Subsidiary after giving effect to such transaction and (ii) after giving effect to such transaction, the aggregate amount of minority equity interests in Subsidiaries (excluding all Liens on any such interests sold assets in a Permitted AEC Transaction) does not exceed 7.5% favor of Consolidated Tangible Net Worth; and
(i) in addition to the foregoing, the Company or any Subsidiary may sell, lease or otherwise dispose of any of its assets for fair value (other than as permitted by clauses (a) through (h) above); provided that (i) no such transaction, when taken together with all previous such transactions, shall result in all or substantially all of the assets of the Company and the Subsidiaries having been sold or otherwise disposed of, (ii) no such transaction shall result in a reduction in the percentage of the Equity Interests of any Subsidiary owned directly or indirectly by the Company unless all the Equity Interests in such Subsidiary owned directly or indirectly by the Company are disposed of and (iii) except in the case of an Excluded Divestiture or a sale of Receivables not prohibited under Section 6.01, the Commitments shall be reduced pursuant to Section 2.08(b) by an amount at least equal to the Pro Rata Proceeds of each such transaction; provided that if the Company shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Company and the Subsidiaries intend to apply the Net Proceeds from such disposition (or a portion thereof specified in such certificate), within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other assets continue to be used in the business valid, perfected and first priority subsequent to such sale or lease.
(y) Section 6.07 of the Company and the Subsidiaries, and certifying that no Default has occurred and Credit Agreement is continuing, then no reduction of the Commitments shall be required pursuant hereby amended to this clause (iii) in respect of the Net Proceeds of such disposition (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a reduction of the Commitments shall be required in an amount equal to 75% of such Net Proceeds not so applied multiplied by the fraction indicated in clause (b) of the definition of “Pro Rata Proceeds” (calculated read as of the date of the disposition giving rise to such Net Proceeds).follows:
Appears in 1 contract
