Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that: (i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation; (ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity); (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party; (iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h)); (v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; (vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and (vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement. (b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof. (c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except: (i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business; (ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06; (iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07; (iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h); (v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole; (vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings; (viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business; (ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease; (x) the unwinding or termination of any Swap Agreements; and (xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 7 contracts
Samples: Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials Inc)
Fundamental Changes and Asset Sales. (a) The Borrower NAI will not, and will not permit any Restricted Subsidiary to, merge into into, consolidate with, or consolidate with otherwise be acquired by, any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose (including pursuant to a Sale and Leaseback Transaction) of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter here-after acquired, and for purposes hereof, any capital stock issued by NAI which is held by NAI as treasury stock shall not be deemed to be property or an asset of NAI and shall not be subject to this subparagraph 3(B)(3), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person Subsidiary may merge into the Borrower a Material Domestic Subsidiary in a transaction in which the Borrower surviving entity is the surviving corporation;
such Material Domestic Subsidiary, (ii) any Restricted wholly owned Subsidiary may merge into (i) or consolidate with any wholly owned Subsidiary in a transaction in which the Borrower surviving entity is a wholly owned Subsidiary and no Person other than NAI or a wholly owned Subsidiary receives any consideration, provided that if any such merger described in this clause (ii) one or more Restricted Subsidiaries (provided that when shall involve a Restricted Subsidiary that is a Loan Party is merging with a Restricted Material Domestic Subsidiary, the Loan Party surviving entity of such merger shall be the surviving entity);
a Material Domestic Subsidiary, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower a Material Domestic Subsidiary or any Restricted Subsidiary; provided that if a transferor in such wholly owned Subsidiary pursuant to a transaction is a Loan Partynot otherwise prohibited under the Operative Documents, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower NAI determines in good faith that such liquidation or dissolution is in the best interests of NAI, (v) NAI may merge with any other Person so long as NAI is the Borrower and is not materially disadvantageous to the Lenders;
surviving entity, (vi) any Subsidiary may merge with any other Person so long as the Borrower and surviving entity is, in the Restricted Subsidiaries may dispose of property and assets, including Equity Interests case of a SubsidiarySubsidiary Guarantor, either directly or through the Subsidiary Guarantor, and in all other cases, a merger or consolidation, to the extent permitted by clause (c) of this Section; and
wholly owned Subsidiary and (vii) so long as no Default exists or would result therefrom, any Subsidiary other than a Subsidiary Guarantor may merge into, and NAI or consolidate with any Subsidiary may dispose of assets to, any other Person that is not so long as NAI delivers a Restricted Subsidiary; provided that (icertificate to BNPPLC demonstrating pro forma compliance with subparagraph 3(C) after giving effect to such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementtransaction.
(b) The Borrower NAI will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower NAI and its Restricted Subsidiaries on the date of execution of this Agreement the Operative Documents and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower NAI will not, and will not permit any of the Restricted its Subsidiaries to, sell, transfer, lease change its fiscal year to end on a day other than as such fiscal year end is currently determined or otherwise dispose change NAI’s method of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddetermining fiscal quarters.
Appears in 6 contracts
Samples: Closing Certificate and Agreement (Network Appliance Inc), Closing Certificate and Agreement (Network Appliance Inc), Closing Certificate and Agreement (NetApp, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower No Loan Party or Subsidiary will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) any other Person, or permit any other Person to merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) it, or sell, transfer, lease or otherwise dispose (each, a “disposal” or “disposition”) of (in one transaction or in a series of transactions) all of its assetsany assets (whether now owned or hereafter acquired) to any Person, or liquidate or dissolve. Notwithstanding the foregoing the following, shall be permitted:
(i) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person may merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any Borrower in a transaction in which the applicable Borrower is the surviving entity (provided that if a Subsidiary Borrower merges or consolidates with or into Parent, Parent is the surviving corporation and Parent has assumed such Borrower’s obligations hereunder as a Borrower),
(ii) any Subsidiary may merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any other Subsidiary in a transaction in which the surviving entity is a wholly-owned Subsidiary (in the case of a Loan Party, subject to preceding clause (i)),
(iii) assets or equity interests of any Subsidiary may be disposed of to any other wholly-owned Subsidiary or to the Parent or by a Borrower to another Borrower or by a Borrower to a wholly-owned Subsidiary,
(iv) the Parent or any Subsidiary may dispose of assets or property to any other Person; provided, that, the aggregate book or fair market value of all assets disposed (to a Person other than the Parent, a Borrower or substantially all any other wholly-owned Subsidiary) under this clause (iv) during any fiscal year of Parent shall not exceed 15% of the Equity Interests total consolidated assets of the Parent and its consolidated Subsidiaries, determined in accordance with GAAP, measured as of the last day of the immediately preceding fiscal year for which financial statements have been or were required to be delivered pursuant to this Agreement,
(v) the Parent and its Subsidiaries may dispose of inventory in the ordinary course of business,
(vi) Parent and its Subsidiaries may transfer assets in connection with a Financing Arrangement permitted under Section 6.03,
(vii) the Parent or any Subsidiary may lease, as lessor or sublessor, or license, as licensor or sub licensor, real or personal property (other than any intellectual property) in the ordinary course of its Restricted Subsidiaries business, provided that no such lease or license shall materially interfere with the ordinary course of business of the Parent or any Subsidiary,
(viii) the Parent or any Subsidiary may liquidate or sell Cash Equivalents,
(ix) the Parent or any Subsidiary may, in the ordinary course of business, licence or sublicense intellectual property owned or held by the Parent or such Subsidiary so long as each casesuch license is non exclusive and in the ordinary course of business,
(x) the Parent or any Subsidiary may dispose of obsolete or worn out property, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, and may dispose of property no longer used or useful in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement Parent or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; andSubsidiary,
(xi) the Parent or any Subsidiary may sell Receivable Assets to a Securitization Entity in addition a Qualified Securitization Transaction for the fair market value thereof; provided that at no time shall more than US$1,000,000,000 (or its equivalent in another currency or currencies) in fair market value of assets be subject to such Qualified Securitization Transaction,
(xii) any Subsidiary may pay dividends or make any other distribution,
(xiii) the Parent may pay cash dividends (or dividends paid in the form of common equity of the Parent) to its shareholders, to the dispositions permitted by extent lawful, and
(xiv) any Subsidiary may liquidate or dissolve (with any residual assets being applied in accordance with one of the other clauses of this Section 6.03(c6.01), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 3 contracts
Samples: Bridge Loan Agreement (Teva Pharmaceutical Industries LTD), Loan Agreement (Teva Pharmaceutical Industries LTD), Revolving Credit Agreement (Teva Pharmaceutical Industries LTD)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory and raw or scrap materials in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any Subsidiary may other sales, transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) during any fiscal year of the Borrower, does not exceed 5% of Consolidated Total Assets (as Consolidated Total Assets shall be determined as of the last day of the fiscal year immediately preceding the fiscal year in which the applicable sale, transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h)lease or disposition is occurring);
(v) the Borrower may consummate the International Transaction;
(vi) the SMA Sale and Liquidation; and
(vii) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations assets of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant are transferred to a supplement hereto Subsidiary as part of such liquidation or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementdissolution.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to Effective Date. Schedule 6.03 sets forth the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of dates on which the Borrower, is not material to ’s fiscal quarters and fiscal years shall end during the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses term of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodAgreement.
Appears in 3 contracts
Samples: Credit Agreement (Symmetry Medical Inc.), Credit Agreement (Symmetry Medical Inc.), Senior Subordinated Credit Agreement (Symmetry Medical Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary Group Member to, merge enter into any merger, consolidation or consolidate with any other Personamalgamation, or permit liquidate, wind up or dissolve itself (or suffer any other Person to merge into liquidation or consolidate with itdissolution), or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned property or hereafter acquired), or liquidate or dissolvebusiness, except that:
(i) (A) any Person Subsidiary of the Company (other than a Borrower) may merge be merged, consolidated or amalgamated with or into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries Company (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party Company shall be the continuing or surviving entity);
corporation) or with or into any Wholly Owned Subsidiary Guarantor (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Wholly Owned Subsidiary Guarantor shall be the continuing or surviving entity corporation) and (B) any Excluded Subsidiary may merge, consolidate or amalgamate with any other Excluded Subsidiary;
(ii) if any Subsidiary of the Person formed by Company may Dispose of any or all of its assets to the Company or any Wholly Owned Subsidiary Guarantor (upon voluntary liquidation, winding up, dissolution or otherwise);
(iii) the Company or any Subsidiary thereof may be merged, consolidated or amalgamated with a Person, provided that (i) the Company or such Subsidiary is the continuing or surviving corporation and (ii) the shareholders of the Company or such Subsidiary immediately prior to such merger, consolidation or amalgamation hold the majority of the Equity Interests in the entity that results from such merger, consolidation or amalgamation;
(iv) the Company or any such merger or consolidation (Subsidiary thereof may make any such Person, the “Successor Company”) Disposition that is not a Disposition of all or substantially all of the property or business of the Group Members, taken as a whole;
(v) any De Minimis Subsidiary may voluntarily liquidate or dissolve to the extent the board of directors of such De Minimis Subsidiary Guarantor, deems it to be in its best interest and to the extent doing so would not reasonably be expected to have a Material Adverse Effect;
(vi) the Company may consummate the transactions described in Schedule 6.6; and
(vii) a Corporate Reorganization may be effected; provided that (A) any Person into which the Successor Company may be merged shall be an entity a corporation organized or existing under the laws of a State in the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor the Company under the Subsidiary Guaranty this Agreement and the other Loan Credit Documents to which the Subsidiary Guarantor is a party pursuant to a supplement supplements hereto and thereto or thereto other documents or instruments, in each case in form and substance reasonably satisfactory to the Administrative Agent, and shall take all actions as may be required to preserve the enforceability of the Credit Documents and the validity and perfection of the Liens created by the Collateral Documents, (B) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of any such transaction, (C) such each Subsidiary Guarantor shall have delivered confirmed that its Obligations Guarantee and grant of Liens under the Collateral Documents shall apply to the Obligations of any such Person into which the Company may be merged and (D) the Administrative Agent an officer’s certificate stating that shall have received such merger or consolidation officers’ certificates and opinions of counsel as it may reasonably request in connection with such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementtransaction.
(b) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries Group Member to, engage Dispose of (i) any Principal Trade Name or (ii) any other Intellectual Property right owned by the Company or a Subsidiary Guarantor that is material to any material extent in any the business of the Company and the Group Members, taken as a whole, other than (A) in the case of each of clauses (i) and (ii), (1) non-exclusive or partial exclusive licenses in the ordinary course of business that do not materially interfere with the business of the Company and the Subsidiaries, taken as a whole (and, in the case of partial exclusive licenses, so long as (x) the Company or any of the Subsidiary Guarantors retains the right, as needed, to use such Intellectual Property in the conduct of their respective businesses and (y) the Company or any of the Subsidiary Guarantors, as applicable, retains a right to royalty arrangements on market terms as determined by the Company in good faith), and (2) exclusive licenses to use such Intellectual Property in specific markets outside the United States so long as (x) the Company or any of the Subsidiary Guarantors retains the right to use such Intellectual Property in the conduct of their respective businesses in the United States, (y) such licenses do not materially interfere with the business of the Company and the Subsidiaries, taken as a whole, and (z) the Company or any of the Subsidiary Guarantors, as applicable, retains a right to royalty arrangements on market terms as determined by the Company in good faith, and (B) in the case of clause (ii), Dispositions (other than those set forth in clause (A) immediately above) of (1) any such Intellectual Property in connection with Dispositions permitted hereunder of the assets to which such Intellectual Property relates to the extent that such Intellectual Property is not necessary for the conduct of any of the remaining businesses of the type conducted by Company and the Borrower Subsidiaries or (2) any such Intellectual Property that is, in the good faith determination of the Company, no longer material to the business of the Company and its Restricted Subsidiaries on the date Group Members, taken as a whole, at the time of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofsuch Disposition.
(c) The Borrower Company will not, and will not permit any of the Restricted Subsidiaries Group Member to, sellconsummate any Asset Sale, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
unless (i) dispositions the Company or sales such Group Member, as the case may be, receives consideration for such Asset Sale at least equal to the fair market value (calculated as of inventory, used, obsolete the date of the consummation of such Asset Sale and without giving effect to any adjustment not then determined or surplus equipment and Permitted Investments any subsequent changes in value) of the ordinary course of business;
assets Disposed of; (ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property for up to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights US$250,000,000 in the ordinary course aggregate of business which, in consideration received by the reasonable good faith determination of Company and the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables Group Members in connection with all Asset Sales under this clause (c), at least 50% of the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets consideration received in connection with any such Asset Sale (calculated as of the termination date of the consummation of such Asset Sale and without giving effect to any operating lease;
(xadjustment not then determined or any subsequent changes in value) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses Company or such Group Member, as the case may be, is in the form of this Section 6.03(c)Cash or Cash Equivalents, leasesand for any amount in excess thereof, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be received in cash or cash equivalents. The term “Substantial Portion” means, on any date, property connection with a net book value that represents more than 15% of the Consolidated Total Assets such Asset Sale (calculated as of the last day date of the last month before consummation of such Asset Sale and without giving effect to any adjustment not then determined or any subsequent changes in value) by the start Company or such Group Member, as the case may be, is in the form of Cash or Cash Equivalents; provided, however, that for purposes of this clause (ii), each of the following shall be deemed to be Cash: (A) any liabilities (as shown on the Company’s or such Group Member’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Company or such Group Member, other than any liabilities that are by their terms subordinated in right of payment in Cash to the Obligations or that are owed to the Company or a Group Member, that are assumed by the transferee with respect to the applicable Asset Sale and for which the Company and all of the Group Members shall have been validly released by all applicable creditors in writing, or otherwise cease to be obligations of the Company or any Group Member, and (B) any securities, notes or other obligations or assets received by the Company or such Group Member from such transferee that are converted by the Company or such Group Member into Cash (to the extent of the Cash received) within 180 days following the closing of the applicable Calculation PeriodAsset Sale; (iii) such Asset Sale otherwise complies with the applicable provisions of the Credit Documents; and (iv) to the extent required by the Collateral Documents or Section 5.7, all consideration received in such Asset Sale shall be expressly made subject to the Liens under the Collateral Documents.
(d) The Company will not, and will not permit any Group Member to, consummate any Disposition of assets that constitute Collateral (other than Dispositions of inventory in the ordinary course of business), in a single transaction or a series of related transactions, if after giving pro forma effect to such Disposition the Borrowing Base would be reduced by more than US$100,000,000, unless (i) after giving pro forma effect to such Disposition and the application of proceeds therefrom, the Borrowing Base Coverage Ratio is at least 1.10:1.00 and (ii) within ten days following the consummation of such Disposition, the Company shall have delivered a Borrowing Base Certificate pursuant to Section 5.1(c)(ii).
Appears in 2 contracts
Samples: Credit Agreement (Chrysler Group LLC), Credit Agreement (Chrysler Group LLC)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) (A) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that surviving entity is a Loan Party is merging with or in which such surviving entity becomes a Restricted Subsidiary, the Loan Party shall be (provided that any such merger involving the Borrower must result in the Borrower as the surviving entity)) or (B) any Subsidiary that is not a Loan Party may merge into any other Subsidiary that is not a Loan Party;
(iii) the Borrower or (A) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all its assets to a Loan Party, (B) any Subsidiary that is not a Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower or any Restricted Subsidiary; provided another Subsidiary that if a transferor in such a transaction is not a Loan PartyParty or (C) any Loan Party may sell, then the transferee must be a transfer, lease or otherwise dispose of its assets to any other Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall is not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;; and
(viv) the Borrower and the Restricted its Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent consummate acquisitions permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementSection 6.05.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year for GAAP purposes from the basis in effect on the Effective Date, transferprovided, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance subsequently acquired after the Effective Date may change its fiscal year for GAAP purposes to correspond with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period’s fiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Electronic Arts Inc.), Credit Agreement (Electronic Arts Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity), and any Non-Loan Party may merge into another Non-Loan Party;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted other Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) during any fiscal year of the Borrower, does not exceed ten percent (10%) of Consolidated Total Assets under Permitted Receivables Facilities (subject determined by reference to the limitation that most recent financial statements of the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Borrower delivered pursuant to Section 6.01(h5.01(a) or 5.01(b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to such Section, the most recent financial statements referred to in Section 3.04(a));; and
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Maxim Integrated Products Inc)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellconsummate a Division as the Dividing Person, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, (x) any Subsidiary of the Borrower may sell Receivables under (i) Permitted Receivables Facilities (subject to the limitation set forth in Section 6.01(c)) and (ii) A/R Purchase Programs; (y) the Borrower may issue the Specified Equity Units pursuant to definitive documentation substantially similar to precedent previously identified by the Borrower to the Administrative Agent (unless otherwise mutually agreed by the Borrower and the Administrative Agent); and (z) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) another Subsidiary of the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity)Borrower;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all Dispose of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then another Subsidiary of the transferee must be a Loan PartyBorrower;
(iv) the Borrower’s Subsidiaries may:
(A) Dispose of inventory in the ordinary course of business,
(B) Dispose of storage or pipeline capacity in the ordinary course of business,
(C) effect sales, trade-ins or other Dispositions of used, obsolete, worn-out or surplus equipment for value in the ordinary course of business consistent with past practice,
(D) enter into licenses of technology in the ordinary course of business,
(E) Dispose of Investments in cash and Permitted Investments in the ordinary course of business,
(F) enter into leases, subleases, licenses or sublicenses of real or personal property granted by any Subsidiary of the Borrower to others in the ordinary course of business not interfering in any material respect with the business of the Borrower or any Subsidiary may transferof its Subsidiaries,
(G) effect Dispositions in connection with any theft, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities loss, physical destruction or damage, taking or similar event with respect to any of their respective properties; and
(subject to H) effect the limitation that write-off of good will or other intangibles in the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))ordinary course of business;
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, engage in any transactions constituting Restricted Payments to the extent permitted by clause (c) of this Sectionunder Section 6.07 and Investments to the extent permitted under Section 6.04; and
(vii) so long as no Default exists or would result therefrom, a any Subsidiary Guarantor of the Borrower may merge into or consolidated with any other Person, or permit any other Person to merge into or consolidate with any other Person that is not it, or consummate a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be Division as the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Dividing Person, or the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia Borrower or any territory thereof, of its Subsidiaries may Dispose of its assets (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party including pursuant to a supplement hereto Sale and Leaseback Transaction or thereto any of the Equity Interests of any of its Subsidiaries (in form reasonably satisfactory each case whether now owned or hereafter acquired)), provided that after giving effect to such transaction or series of transactions the Borrower shall be in compliance on a pro forma basis with the financial covenant contained in Section 6.11(a) recalculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements were required to be delivered pursuant to Section 5.01, as if such transaction or series of transactions had occurred on the first day of the relevant period for testing such compliance, and, to the Administrative Agent, and (C) extent any such Subsidiary Guarantor transaction have value greater than or equal to $250,000,000 the Borrower shall have delivered to the Administrative Agent an officer’s for distribution to each of the Lenders a certificate stating of a Financial Officer evidencing the continued compliance with the terms and conditions of this Agreement and the other Loan Documents in form and substance reasonably acceptable to the Administrative Agent; provided that any such merger or consolidation and or Division involving a Person that is not a wholly-owned Subsidiary immediately prior to such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and merger or consolidation or Division shall not be substituted for, such Subsidiary Guarantor under this Agreementpermitted unless it is also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodRestatement Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Ugi Corp /Pa/), Credit Agreement (Ugi Corp /Pa/)
Fundamental Changes and Asset Sales. (a) The No Borrower will, nor will not, and will not it permit any Restricted Subsidiary of its Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets, or all or substantially all of the Equity Interests stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person Subsidiary may merge into the Borrower Parent in a transaction in which the Borrower Parent is the surviving corporation;
, (ii) any Restricted Subsidiary may merge into (i) any Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that surviving entity is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of its assets, including all or substantially all of the stock of any of its assets Subsidiaries, to the Borrower Parent or to another Subsidiary so long as any Restricted Subsidiary; provided such assets that if a transferor in such a transaction is a Loan Partyconstitute Collateral continue to be subject to the first priority security interest of the applicable Administrative Agent, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Borrowers and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of ; provided that any such merger involving a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger shall not be permitted unless also permitted by Section 6.04, (v) the Parent or consolidation any Subsidiary may sell, transfer, lease or otherwise dispose of inventory, cash or Permitted Investments, in each case in the ordinary course of business, (vi) the Parent or any such PersonSubsidiary may sell, transfer, lease or otherwise dispose of obsolete, used, surplus, no longer used or useful or worn out property, whether now owned or hereafter acquired, (vii) the “Successor Company”) is not such Parent or any Subsidiary Guarantormay sell, transfer, lease or otherwise dispose of property to the extent that (A) such property is exchanged for credit against the Successor Company shall be an entity organized purchase price of similar replacement property or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations proceeds of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory disposition are promptly applied to the Administrative Agentpurchase price of such replacement property, and (Cviii) such the Parent or any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of property so long as the consideration received therefrom in cash shall have delivered to not exceed $10,000,000 in the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to aggregate in any fiscal year of the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementParent.
(b) The No Borrower will, nor will not, and will not it permit any of its Restricted Subsidiaries subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Parent and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 2 contracts
Samples: Credit Agreement (Mirion Technologies, Inc.), Credit Agreement (Mirion Technologies, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) (A) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity), (B) any wholly-owned Subsidiary of the Borrower that is not a Loan Party may merge into another wholly-owned Subsidiary of the Borrower that is not a Loan Party (provided that the survivor thereof shall be a wholly-owned Subsidiary of the Borrower) and (C) any non-wholly-owned Subsidiary of the Borrower that is not a Loan Party may merge into another Subsidiary of the Borrower that is not a Loan Party to the extent permitted under clause (iv) below;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions that, together with the Fair Market Value of all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (subject to D) during any fiscal year of the limitation that the Attributable Receivables Indebtedness thereunder shall Borrower, does not exceed an aggregate amount permitted under Section 6.01(h))$25,000,000;
(v) the Borrower and its Subsidiaries may make dispositions of, or discount without recourse, accounts receivable in connection with the compromise or collection thereof in the ordinary course of business (and not as part of any Restricted financing transaction);
(vi) the Borrower and its Subsidiaries may make dispositions of cash and Permitted Investments in the ordinary course of business;
(vii) the Borrower and its Subsidiaries may make dispositions of obsolete, used, worn out or surplus equipment, raw materials and supplies in the ordinary course of business;
(viii) the Borrower and its Subsidiaries may make sales or dispositions of shares of Equity Interests of any of Subsidiary in order to qualify members of the governing body of such Subsidiary if required by applicable law;
(ix) the Borrower and its Subsidiaries may enter into sale and leaseback transactions permitted under Section 6.10;
(x) the Borrower and its Subsidiaries may make charitable donations in the ordinary course of business and consistent with past practices;
(xi) the Borrower and its Subsidiaries may grant Liens to the extent such Liens are permitted under Section 6.02;
(xii) the Borrower and its Subsidiaries may enter into Permitted Safeguard Distributor Transactions; and
(xiii) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement Effective Date and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 2 contracts
Samples: Credit Agreement (Deluxe Corp), Credit Agreement (Deluxe Corp)
Fundamental Changes and Asset Sales. (ai) The Borrower Parent Guarantor will not, and will not permit Lessee or any Restricted other Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including pursuant to a Sale and Leaseback Transaction) all of its assets, or all or substantially all of the Equity Interests assets of any of the Parent Guarantor and its Restricted Subsidiaries (in each case, taken as a whole) (whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(iA) any Person (other than the Parent Guarantor or any of its Subsidiaries) may merge or consolidate with the Parent Guarantor or any of its Subsidiaries; provided that any such merger or consolidation involving (1) the Lessee must result in the Lessee as the surviving entity (unless in connection therewith an Affiliate Transferee becomes the Lessee pursuant to Article VI of the Lease), (2) the Parent Guarantor must result in the Parent Guarantor as the surviving entity and (3) a Subsidiary Guarantor must result in a Subsidiary Guarantor (or any entity that becomes a Subsidiary Guarantor) as the surviving entity;
(B) any Subsidiary may merge into or consolidate with a Guarantor, the Borrower Lessee, or a Bank Credit Agreement Specified Loan Party in a transaction in which the Borrower surviving entity is such Guarantor, the Lessee or such Bank Credit Agreement Specified Loan Party; provided that any such merger or consolidation involving (1) the Lessee must result in the Lessee as the surviving corporation;
entity (ii) any Restricted Subsidiary may merge into unless in connection therewith an Affiliate Transferee becomes the Lessee pursuant to Article VI of the Lease), (i2) the Borrower Parent Guarantor must result in the Parent Guarantor as the surviving entity and (3) a Subsidiary Guarantor must result in a Subsidiary Guarantor as the surviving entity (unless also involving the Lessee or Parent Guarantor, in which case, subclause (1) or (ii2) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiaryabove shall apply, the Loan Party shall be the surviving entityas applicable);
(iiiC) the Borrower any Subsidiary that is not a Subsidiary Guarantor may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of any Restricted or all of its assets to, another Subsidiary that is not a Subsidiary Guarantor (in connection with a liquidation, winding up or dissolution or otherwise);
(D) any Subsidiary may sell, transfer, lease or otherwise dispose of all any or substantially all of its assets to the Borrower Parent Guarantor, the Lessee, a Subsidiary Guarantor or any Restricted Subsidiary; provided that if a transferor Bank Credit Agreement Specified Loan Party (in such connection with a transaction is a Loan Partyliquidation, then the transferee must be a Loan Party;
(iv) the Borrower winding up or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h)dissolution or otherwise);
(vE) any Restricted Subsidiary that is not a Subsidiary Guarantor may liquidate liquidate, wind up or dissolve (1) if the Borrower Parent Guarantor determines in good faith that such liquidation liquidation, winding up or dissolution is in the best interests of the Borrower Parent Guarantor and is not materially disadvantageous to the LendersParticipants or (2) to the extent undertaken in good faith for the purpose of improving the overall tax efficiency of the Parent Guarantor and its Subsidiaries;
(viF) the Borrower Parent Guarantor and its Subsidiaries may consummate Permitted Restructurings;
(G) the Parent Guarantor and its Subsidiaries may enter into, terminate or modify leases, subleases, licenses and sublicenses of technology and other property (1) in the ordinary course of business, (2) between or among the Parent Guarantor, the Lessee, any Subsidiary Guarantors and any of their Subsidiaries (or any combination thereof) or (3) as permitted by Article VI of the Lease;
(H) the Parent Guarantor and its Subsidiaries may incur Liens permitted under Section 9(b); and
(I) with respect to any rights, title or interest of the Parent Guarantor and its Subsidiaries in the Collateral and the Restricted Subsidiaries may dispose Purchase Agreement, leases, subleases, assignments and other transfers pursuant to or permitted by any of property and assetsthe Operative Documents, including Equity Interests (A) the assignment of some or all of the rights under the Purchase Agreement (including the right to take title to the Facility) pursuant to the Assignment of Purchase Agreement and (B) the assignment or other transfer to Parent Guarantor or a Subsidiary, either directly or through a merger indirectly wholly-owned Domestic Subsidiary of Parent Guarantor as an affiliate transferee pursuant to the Operative Documents; and
(J) with respect to any rights, title or consolidationinterest of the Parent Guarantor and its Subsidiaries in any Permitted Developed Areas, Undeveloped Areas and/or Permitted Development Projects and property related to any of the foregoing (other than any Collateral pursuant to this subclause (J)), leases, subleases, licenses, sublicenses, assignments and other transfers (including, without limitation, any termination or modification of any such lease, sublease, license or sublicense), in any such case of this subclause (J), to the extent (x) not in violation of the Lease and (y) made pursuant to or not prohibited by any definitive documentation governing related Indebtedness (if any) permitted by clause (c) of this Section; andSection 9(a)(xxii).
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary The Parent Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit Lessee or any of its Restricted Subsidiaries other Subsidiary to, engage to any material extent in any business other than substantially different from businesses of the type conducted by the Borrower Parent Guarantor and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with on the compromiseRestatement Date and businesses reasonably related, settlement ancillary, similar, complementary or collection thereof in the ordinary course of business synergistic thereto or in bankruptcy reasonable extensions, development or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodexpansion thereof.
Appears in 2 contracts
Samples: Participation Agreement (Regeneron Pharmaceuticals Inc), Guaranty (Regeneron Pharmaceuticals Inc)
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellliquidate or dissolve, transfer(including, lease or otherwise dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, pursuant to a Division) except that:
, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) any Person Subsidiary may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving corporation;
, (ii) any Restricted Subsidiary may merge into (i) any other Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is a Subsidiary (provided that when that, in the case of a Restricted merger of a Subsidiary that is not a Loan Party Foreign Subsidiary Borrower into a Foreign Subsidiary Borrower in which the surviving Subsidiary is merging with a Restricted Subsidiarynot the Foreign Subsidiary Borrower, the Loan Party surviving Subsidiary shall be execute and deliver to the surviving entityAdministrative Agent a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and shall satisfy the other conditions precedent set forth in Section 4.03);
, and (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vother than a Foreign Subsidiary Borrower) any Restricted Subsidiary may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and its Subsidiaries and is not materially disadvantageous to the Lenders;
(vi) Lenders and except that the Borrower and the Restricted Subsidiaries Company or any Subsidiary may dispose of property and assets, including Equity Interests effect any acquisition permitted by Section 6.04 by means of a Subsidiary, either directly or through a merger or consolidation, to of the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not the subject of such acquisition with the Company or any of its Subsidiaries (provided that, in the case of a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be merger with the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such PersonCompany, the “Successor Company”) Company is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementsurvivor).
(b) The Borrower Company will not, and nor will not it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transferlease, lease transfer or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower one transaction or a Restricted Subsidiary; provided that any such sales, transfers, leases series of transactions) all or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination substantially all of the Borrower, is not material to the conduct assets of the business of the Borrower Company and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 2 contracts
Samples: Credit Agreement (Tapestry, Inc.), Credit Agreement (Tapestry, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of the Company and its assetsSubsidiaries (taken as a whole), or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (taken as a whole) (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person (including any Subsidiary) may merge into or consolidate with the Borrower Company or any Subsidiary in a transaction in which the Borrower Company or such Subsidiary is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries corporation (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Company must result in the Company as the surviving entity);
(iiia) any Subsidiary may merge into a Borrower in which the surviving entity is such Borrower or (provided that any Restricted such merger involving the Company must result in the Company as the surviving entity) and (b) any Subsidiary may merge into any other Subsidiary;
(a) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower Company or any Restricted other Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;and
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall is not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted a Material Subsidiary may liquidate or dissolve if a Responsible Officer of the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than (i) businesses of the type conducted by the Borrower Company and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, related or incidental or ancillary thereto or that is a reasonable extension thereofand (ii) real estate holding and/or development activities.
(c) The Borrower Company will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 2 contracts
Samples: Credit Agreement (Newmarket Corp), Credit Agreement (Newmarket Corp)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary Person (other than the Borrower) may merge into (i) or consolidate with any Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Subsidiary (provided that when any such merger, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in such Subsidiary Guarantor as the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease merge into or otherwise consolidate with any Person in a transaction permitted under clauses (xiv) to (xvi) hereunder in which the surviving entity is not a Subsidiary;
(iv) any Subsidiary may dispose of all any or substantially all of its assets (upon voluntary liquidation, dissolution or otherwise) to the Borrower or any Restricted Subsidiary; provided other Loan Party;
(v) any Subsidiary that if a transferor in such a transaction is not a Loan PartyParty may dispose of any or all of its assets (upon voluntary liquidation, then the transferee must be dissolution or otherwise) to another Subsidiary that is not a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vvi) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vivii) sales, transfers and other dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the ordinary course of business and the assignment, cancellation, abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries may dispose of property Subsidiaries, taken as a whole;
(viii) sales, transfers, leases, Exclusive Licenses and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, other dispositions to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists Borrower or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) any such sales, transfers, leases or other dispositions involving a Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 6.04 and (ii) if Equity Interests in a Domestic Subsidiary may not be transferred to a Foreign Subsidiary;
(ix) the Person formed discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(x) leases, subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of the Borrower and the Subsidiaries taken as a whole;
(xi) Liens incurred in compliance with Section 6.02;
(xii) Investments permitted by Section 6.04;
(xiii) dispositions of property as a result of a casualty event involving such property or surviving any disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(xiv) dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that the consideration received shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the Borrower);
(xv) sales or other dispositions of non-core assets acquired in a Permitted Acquisition; provided that such sales shall be consummated within 360 days of such Permitted Acquisition; and provided further that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Borrower) and (ii) no less than 75% thereof shall be paid in cash; and
(xvi) sales, transfers, leases and other dispositions, and Exclusive Licenses, of assets that are not permitted by any other clause of this Section; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xvi) shall not at the time of and immediately after giving effect to any such merger or consolidation (transaction exceed in any such Person, fiscal year 10% of Consolidated Total Assets at the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws end of the United States, any state or commonwealth thereof, immediately preceding fiscal year of the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementBorrower.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary related thereto or that is a similar or complementary thereto or reasonable extension thereofextensions thereof (including, but not limited to the business of diagnostics, medical devices, delivery technologies and biotechnology).
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 2 contracts
Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc), Credit Agreement (Endo Pharmaceuticals Holdings Inc)
Fundamental Changes and Asset Sales. (a) The Borrower No Loan Party or Subsidiary will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) any other Person, or permit any other Person to merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) it, or sell, transfer, lease or otherwise dispose (each, a “disposal” or “disposition”) of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries assets (in each case, whether now owned or hereafter acquired)) to any Person, or liquidate or dissolve. Notwithstanding the foregoing the following, except thatshall be permitted:
(i) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person may merge into merge, consolidate or amalgamate (or engage in a substantially similar transaction) with the Borrower in a transaction in which the Borrower is the surviving corporation;entity (provided that if the Subsidiary Borrower merges or consolidates with or into the Parent, the Parent is the surviving corporation and the Parent has assumed the Borrower’s obligations hereunder as the Borrower),
(ii) any Restricted Subsidiary may merge into merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any other Person in a transaction in which the surviving entity is a wholly-owned Subsidiary (in the case of a Loan Party, subject to preceding clause (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);),
(iii) assets or equity interests of any Subsidiary may be disposed of to any other wholly-owned Subsidiary or to the Parent or by the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted a wholly-owned Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;,
(iv) the Borrower Parent or any Subsidiary may transferdispose of assets or property to any other Person; provided, sell and/or pledge Permitted Receivables Related Assets that, the aggregate book or fair market value of all assets disposed (to a Person other than the Parent, the Borrower or any other wholly-owned Subsidiary) under Permitted Receivables Facilities this clause (subject to iv) during any fiscal year of the limitation that the Attributable Receivables Indebtedness thereunder Parent shall not exceed an aggregate amount permitted under Section 6.01(h));15% of the total consolidated assets of the Parent and its consolidated Subsidiaries, determined in accordance with GAAP, measured as of the last day of the immediately preceding fiscal year for which financial statements have been or were required to be delivered pursuant to this Agreement,
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted its Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments inventory in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;,
(vi) the lapse Parent and its Subsidiaries may transfer assets in connection with a Financing Arrangement permitted under Section 6.03,
(vii) the Parent or abandonment any Subsidiary may lease, as lessor or sublessor, or license, as licensor or sub licensor, real or personal property (other than any intellectual property) in the ordinary course of business, provided that no such lease or license shall materially interfere with the ordinary course of business of the Parent or any Subsidiary,
(viii) the Parent or any Subsidiary may liquidate or sell Cash Equivalents,
(ix) the Parent or any Subsidiary may, in the ordinary course of business, licence or sublicense intellectual property rights owned or held by the Parent or such Subsidiary, so long as each such license is non-exclusive and in the ordinary course of business.
(x) the Parent or any Subsidiary may dispose of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business which, and may dispose of property no longer used or useful in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement Parent or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; andSubsidiary,
(xi) the Parent or any Subsidiary may sell Receivable Assets to a Securitization Entity in addition a Qualified Securitization Transaction for the fair market value thereof; provided that at no time shall more than US$2,500,000,000 (or its equivalent in another currency or currencies) in fair market value of assets be subject to such Qualified Securitization Transaction,
(xii) any Subsidiary may pay dividends or make any other distribution,
(xiii) the Parent may pay cash dividends (or dividends paid in the form of common equity of the Parent) to its shareholders, to the dispositions permitted by extent lawful,
(xiv) any Subsidiary may liquidate or dissolve (with any residual assets being applied in accordance with one of the other clauses of this Section 6.03(c6.01), leases, sales and
(xv) the Parent or other dispositions any Subsidiary may dispose of property, either directly any shares of Mylan N.V. or through a merger or consolidation, that, together with all other property its successors held by any of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets them as of the last day of the last month before the start of the applicable Calculation PeriodJuly 31, 2015 and any other shares issued thereon.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Teva Pharmaceutical Industries LTD)
Fundamental Changes and Asset Sales. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (other than Unrestricted Margin Stock) (including pursuant to a Sale/Leaseback Transaction), or all or substantially all any of the Equity Interests (other than Unrestricted Margin Stock) of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the or consolidate with a Borrower or Parent in a transaction in which the such Borrower or Parent, as applicable, is the surviving corporation;
(ii) any Restricted Subsidiary Person (other than Parent and each Borrower) may merge into (i) or consolidate with any Restricted Subsidiary in a transaction in which the Borrower or (ii) one or more surviving entity is such Restricted Subsidiaries Subsidiary (provided that when any such merger, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in the surviving entityentity becoming a Subsidiary Guarantor);
(iii) the Borrower or any Restricted Subsidiary (other than a Borrower) may sell, transfer, lease merge into or otherwise dispose of all or substantially all of its assets to the Borrower or consolidate with any Restricted Subsidiary; provided that if a transferor Person in such a transaction permitted under clauses (xiv), (xv) and (xvii) hereunder in which the surviving entity is not a Loan Party, then the transferee must be a Loan PartySubsidiary;
(iv) the Borrower any Restricted Subsidiary (other than a Borrower) may Dispose of any or all of its assets (upon voluntary liquidation, dissolution or otherwise) to Parent or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))other Loan Party;
(v) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other Dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other Disposition of intellectual property that is, in the reasonable judgment of Parent, no longer economically practicable to maintain or useful in the conduct of the business of Parent and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions to Parent or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Disposition made by a Loan Documents Party to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.067.04 and (ii) Equity Interests of a Loan Party may not be transferred to a Subsidiary that is not a Loan Party;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(ivviii) the disposition discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(hreceivables);
(vix) salesleases, transfers subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of Parent and other the Restricted Subsidiaries taken as a whole;
(x) Liens permitted by Section 7.02;
(xi) Investments permitted by Section 7.04;
(xii) subject to Section 2.09(c)(iii), dispositions of Investments property as a result of a Casualty Event involving such property or any disposition of real property to a Governmental Authority as a result of a Condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures ventures, to the extent required by, or made pursuant to, customary to buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vixv) sales or other Dispositions of non-core assets acquired in the Azur Merger, the Acquisition, any Permitted Acquisition or other Investment; provided that such sales shall be consummated within two years of such acquisition or Investment; and provided, further, that (i) the lapse or abandonment of intellectual property rights consideration received for such assets shall be in an amount at least equal to the ordinary course of business which, fair market value thereof (determined in the reasonable good faith determination by the Board of Directors of Parent) and (ii) either (A) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash, or (B) a Borrower, substantially concurrently with the receipt of any non-cash consideration (and in any event within one Business Day), prepays (or cause to be prepaid) the Loans in an amount equal to the amount by which the fair market value of the Borrowernon-cash consideration exceeds 25% of such consideration, is not material such prepayment to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholebe made in accordance with Section 2.09(c)(iii);
(viixvi) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedingsany Immaterial Asset Sale;
(viiixvii) Dispositions of assets that are not permitted by any surrender other clause of this Section 7.03; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xvii) shall not at the time of and immediately after giving effect to any such transaction exceed $200,000,000 in any fiscal year; and provided, further, that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash;
(xviii) the surrender, waiver or settlement of contract contractual rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind and litigation claims in the ordinary course of business;
(ixxix) dispositions Dispositions of leasehold improvements or leased assets Equity Interests in any Subsidiary acquired in connection with any a Permitted Acquisition prior to the termination time of such Subsidiary becoming a Wholly Owned Subsidiary, in each case pursuant to any operating leasestock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such person becoming a Subsidiary;
(xxx) the unwinding or termination of any Swap AgreementsPermitted Reorganization; and
(xixxi) in addition to the dispositions Dispositions of assets that are not permitted by the any other clauses clause of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries7.03; provided that all salesthe applicable Borrower shall substantially concurrently (and in any event within one Business Day) apply 100% of the Net Cash Proceeds thereof to prepay (or cause to be prepaid) the Loans in accordance with Section 2.09(c)(iii) (it being understood that such Net Cash Proceeds shall not constitute Reinvestment Funds); and provided, transfersfurther, leases that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other dispositions of property made pursuant to this clause (xithan Indebtedness) shall be made for fair value and, if the sale, transfer, lease or disposition paid in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodcash.
Appears in 2 contracts
Samples: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into into, consolidate with, or consolidate with otherwise be acquired by, any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose (including pursuant to a Sale and Leaseback Transaction) of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter here-after acquired, and for purposes hereof, any capital stock issued by the Borrower which is held by the Borrower as treasury stock shall not be deemed to be property or an asset of the Borrower and shall not be subject to this Section 6.03), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person Subsidiary may merge into the Borrower a Loan Party in a transaction in which the surviving entity is such Loan Party (provided that any such merger involving the Borrower is must result in the Borrower as the surviving corporation;
entity), (ii) any Restricted wholly owned Subsidiary may merge into (i) or consolidate with any wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person other than the Borrower or a wholly owned Subsidiary receives any consideration, provided that if any such merger described in this clause (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is shall involve a Loan Party is merging with a Restricted SubsidiaryParty, the Loan Party surviving entity of such merger shall be the surviving entity);
a Loan Party, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower a Loan Party or any Restricted Subsidiary; provided that if a transferor in such wholly owned Subsidiary pursuant to a transaction is a Loan Partynot otherwise prohibited under this Agreement, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, (v) the Borrower and may merge with any other Person so long as the Borrower is not materially disadvantageous to the Lenders;
surviving entity, (vi) any Subsidiary may merge with any other Person so long as the Borrower and surviving entity is, in the Restricted Subsidiaries may dispose of property and assets, including Equity Interests case of a SubsidiarySubsidiary Guarantor, either directly or through the Subsidiary Guarantor, and in all other cases, a merger or consolidation, to the extent permitted by clause (c) of this Section; and
wholly owned Subsidiary and (vii) so long as no Default exists or would result therefrom, any Subsidiary other than a Subsidiary Guarantor may merge into, and Borrower or consolidate with any Subsidiary may dispose of assets to, any other Person that is not so long as Borrower delivers a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered certificate to the Administrative Agent an officer’s certificate stating that demonstrating pro forma compliance with Section 6.07 after giving effect to such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementtransaction.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and will not permit any of the Restricted its Subsidiaries to, sell, transfer, lease change its fiscal year to end on a day other than as such fiscal year end is currently determined or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of change the Borrower, is not material to the conduct ’s method of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddetermining fiscal quarters.
Appears in 2 contracts
Samples: Credit Agreement (Network Appliance Inc), Secured Credit Agreement (Network Appliance Inc)
Fundamental Changes and Asset Sales. (a) The Borrower Borrowers will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assets, or all or substantially all of assets (including the Equity Interests of any of its Restricted Subsidiaries subsidiaries) (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing:
(i) the Company or any Person Subsidiary may merge into or consolidate or amalgamate with the Borrower in Company or any Subsidiary; provided, that if the merging, consolidating or amalgamating entity is a transaction in which the Borrower is Loan Party, then the surviving corporationentity of such merger, consolidation or amalgamation shall be or simultaneously become (A) a Domestic Borrower, if the merging, consolidating or amalgamating entity is a Domestic Borrower, (B) a Borrower, if the merging, consolidating or amalgamating entity is a Foreign Borrower, or (C) a Domestic Loan Party, if the merging, consolidating or amalgamating entity is a Subsidiary Guarantor;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower Company or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower Company or any Restricted Subsidiary; provided provided, that if a transferor in such a transaction the disposing entity is a Loan Party, then the transferee must acquiring entity shall be or simultaneously become (A) a Domestic Loan Party, if the disposing entity is a Domestic Loan Party, or (B) a Loan Party, if the disposing entity is a Foreign Borrower.
(iii) the Company and the Subsidiaries may (A) sell inventory in the ordinary course of business, (B) sell worn-out or obsolete assets in the ordinary course of business, (C) grant licenses or sublicenses of intellectual property in the ordinary course of business which do not interfere in any material respect with the ordinary conduct of business of the Company or such Subsidiary, (D) sell, transfer or otherwise dispose of accounts receivable in connection with the compromise, settlement or collection thereof, (E) sell, transfer or otherwise dispose of Cash Equivalent Investments for fair market value, (F) suffer dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Company or such Subsidiary, (G) sell, transfer or otherwise dispose of its assets to the extent such disposition constitutes an Investment permitted by Section 6.04, (H) sell, transfer or otherwise dispose of the following assets to any Subsidiary: (i) Equity Interests in a Foreign Subsidiary, or (ii) loan receivables from a Foreign Subsidiary, and (I) make any other sales, transfers, leases or other dispositions; provided, that, in the case of this clause (I), (1) such dispositions are for fair market value and on an arm’s-length basis, (2) the aggregate book value of assets of the Company and the Subsidiaries disposed of in any fiscal year of the Company shall not exceed ten percent (10%) of the Consolidated Tangible Assets of the Company and the Subsidiaries as set forth on the Company’s most recent Financial Statements (as the amount of such Consolidated Tangible Assets may be increased to reflect tangible assets acquired since the date of such Financial Statements in connection with any Permitted Acquisitions), and (3) the aggregate book value of assets of the Company and the Subsidiaries disposed of during the term of this Agreement in reliance upon this clause (iii) shall not exceed $100,000,000;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets; provided, including Equity Interests of a Subsidiary, either directly that if such liquidating or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a dissolving Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company a Domestic Guarantor, then its assets shall be an entity organized transferred to another Domestic Loan Party prior to such liquidation or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereofdissolution, (B) the Successor Company a Domestic Borrower, then its assets shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty be transferred to another Domestic Loan Party, and the other Loan Documents its Obligations shall be assigned to which the Subsidiary Guarantor is a party and assumed by another Domestic Borrower pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent, and prior to such liquidation or dissolution, or (C) such Subsidiary Guarantor a Foreign Borrower, then its assets shall have delivered be transferred to another Loan Party, and its Obligations shall be assigned to and assumed by another Borrower pursuant to documentation reasonably satisfactory to the Administrative Agent Agent, prior to such liquidation or dissolution; and
(v) any Person may merge into or consolidated or amalgamate with the Company or any Subsidiary in connection with an officer’s certificate stating that such merger Acquisition in which the Company or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementis the surviving entity or the other Person simultaneously becomes a Domestic Borrower, Foreign Borrower or Subsidiary Guarantor, if and as applicable.
(b) The Borrower Borrowers will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Company and its Restricted the Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower Borrowers will not, and will not permit any of the Restricted Subsidiaries Subsidiary to, sell, transfer, lease or otherwise dispose change its fiscal year from the basis in effect on the date of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses execution of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Altra Industrial Motion Corp.), Credit Agreement (Altra Holdings, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Person Subsidiary may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving corporation;
, (ii) any Restricted Subsidiary (including a Subsidiary Guarantor) may merge into (i) any other Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is a Subsidiary (provided that when that, in the case of a Restricted merger of a Subsidiary that is not a Loan Party Foreign Subsidiary Borrower into a Foreign Subsidiary Borrower in which the surviving Subsidiary is merging with a Restricted Subsidiarynot the Foreign Subsidiary Borrower, the Loan Party surviving Subsidiary shall be execute and deliver to the surviving entityAdministrative Agent a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and shall satisfy the other conditions precedent set forth in Section 4.03);
, and (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vother than a Foreign Subsidiary Borrower) any Restricted Subsidiary may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and its Subsidiaries and is not materially disadvantageous to the Lenders;
(vi) Lenders and except that the Borrower and the Restricted Subsidiaries Company or any Subsidiary may dispose of property and assets, including Equity Interests effect any acquisition permitted by Section 6.04 by means of a Subsidiary, either directly or through a merger or consolidation, to of the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not the subject of such acquisition with the Company or any of its Subsidiaries (provided that, in the case of a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be merger with the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such PersonCompany, the “Successor Company”) Company is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementsurvivor).
(b) The Borrower Company will not, and nor will not it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transferlease, lease transfer or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower one transaction or a Restricted Subsidiary; provided that any such sales, transfers, leases series of transactions) all or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination substantially all of the Borrower, is not material to the conduct assets of the business of the Borrower Company and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 2 contracts
Samples: Credit Agreement (Coach Inc), Credit Agreement (Coach Inc)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, exclusively license or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale/Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary (x) Person (other than the Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is such Restricted Subsidiary (iprovided that any such merger, consolidation or liquidation involving a Subsidiary Guarantor must result in the surviving entity becoming a Subsidiary Guarantor) and any (y) non-Loan Party may merge into or consolidate with the Borrower or (ii) one or more Restricted Subsidiaries any Subsidiary of the Borrower (provided that when any such merger, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in the surviving entityentity becoming a Subsidiary Guarantor);
(iii) the Borrower or any Restricted Subsidiary (other than the Borrower) may sellmerge into or consolidate with any Person in a transaction permitted under clauses (xiv), transfer, lease (xv) and (xvii) hereunder in which the surviving entity is not a Subsidiary;
(iv) any Restricted Subsidiary (other than the Borrower) may Dispose of or otherwise dispose of all exclusively license any or substantially all of its assets (upon voluntary liquidation, dissolution or otherwise) to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a other Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other Dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the ordinary course of business and the assignment, cancellation, abandonment or other Disposition or exclusive license of intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, taken as a whole;
(vii) (x) Dispositions (including Equity Interests of a Subsidiary, either directly Subsidiaries) or through a merger or consolidation, exclusive licenses to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists Borrower or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) any such Disposition or exclusive license made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 7.04 and (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) Equity Interests of a Loan Party may not be transferred to a Subsidiary that is not a Loan Party or (y) Dispositions by the Borrower or any Restricted Subsidiary to any Subsidiary that is not a Restricted Subsidiary in an amount not to exceed $5,000,000 per fiscal year;
(viii) Dispositions or the discount or sale, in each case without recourse, of receivables arising in the ordinary course of business;
(ix) leases, subleases, licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of the Borrower and the Restricted Subsidiaries taken as a whole;
(x) Liens permitted by Section 7.02;
(xi) Investments permitted by Section 7.04;
(xii) subject to Section 2.09(c)(iii), dispositions of property as a result of a Casualty Event involving such Subsidiary Guarantorproperty or any disposition of real property to a Governmental Authority as a result of a Condemnation of such real property;
(xiii) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(Axiv) sales or other Dispositions of non-core assets acquired in the Successor Company Acquisition, any Permitted Acquisition or other Investment; provided that such sales shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations consummated within two years of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto acquisition or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this AgreementInvestment; provided, further, that if the foregoing consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of the Borrower);
(xv) Dispositions of assets that are satisfiednot permitted by any other clause of this Section 7.03; provided that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of the Borrower) and (ii) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash;
(xvi) the surrender, waiver or settlement of contractual rights or claims and litigation claims in the Successor Company will succeed toordinary course of business;
(xvii) Dispositions of Equity Interests in any Subsidiary acquired in connection with a Permitted Acquisition, in each case pursuant to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such person becoming a Subsidiary; and
(xviii) Dispositions of cash to Unrestricted Subsidiaries in order to consummate the Acquisition (including any fees and be substituted for, such Subsidiary Guarantor under this Agreementexpenses related thereto) and to pay any purchase price or working capital adjustments or indemnification payments related thereto.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, to engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries (including the Acquired Business and its Subsidiaries, after giving effect to the consummation of the Acquisition) on the date of execution of this Agreement and any business businesses reasonably related, incidental complementary or ancillary thereto or that is a similar or complementary thereto or reasonable extension extensions thereof.
(c) The Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sellchange its fiscal year from the basis in effect on the Closing Date; provided, transferhowever, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a saleLoan Parties may, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property upon written notice to the Borrower or a Restricted Subsidiary; provided that Administrative Agent, change their respective fiscal years to any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures fiscal year reasonably acceptable to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business whichAdministrative Agent, in the reasonable good faith determination of the Borrowerwhich case, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this clause (xi) during the twelve-month period ending with the month Agreement that are necessary to reflect such change in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodfiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Albany Molecular Research Inc), Credit Agreement (Albany Molecular Research Inc)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person Restricted Subsidiary may merge into or consolidate with the Borrower or any other Restricted Subsidiary; provided that (A) if the Borrower is a party in a transaction in which such transaction, the Borrower is the surviving corporation; and (B) if any Subsidiary Guarantor is a party in such transaction and the Borrower is not, the surviving entity shall be or become a Subsidiary Guarantor;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is not a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (A) to the Borrower or any other Restricted Subsidiary; provided that if a transferor Subsidiary or (B) in such a any transaction is permitted pursuant to Section 6.04;
(iii) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets (A) to a Loan Party, then the transferee must be a Loan PartyParty or (B) in any transaction permitted pursuant to Section 6.04;
(iv) the Borrower or any Restricted Subsidiary may transfermerge into or consolidate with another Person in order to consummate a transaction what is otherwise permitted pursuant to Section 6.04; provided that (A) if the Borrower is a party in such transaction, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities the Borrower is the surviving corporation; and (subject to B) if any Subsidiary Guarantor is a party in such transaction and the limitation that Borrower is not, the Attributable Receivables Indebtedness thereunder surviving entity shall not exceed an aggregate amount permitted under Section 6.01(h))be or become a Subsidiary Guarantor;
(v) the Borrower and its Restricted Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business, (C) enter into licenses or sublicenses of technology or other intellectual property in the ordinary course of business, (D) enter into leases in the ordinary course of business, and (E) make any other sales, transfers, leases or dispositions (and any merger or consolidation with another Person in order to consummate such sale, transfer, lease or disposition) that, together with all other property of the Borrower and its Restricted Subsidiaries previously leased, sold or disposed of as permitted by this clause (E) during any fiscal year of the Borrower, does not exceed the greater of (x) $35,000,000 and (y) an amount equal to 15% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the most recent financial statements referred to in Section 3.04), as applicable;
(vi) the use or transfer of cash or cash equivalents in a manner that is not prohibited by the terms of the Agreement;
(vii) sales, transfers or dispositions of accounts in the ordinary course of business for purposes of collection or settlement of disputed claims;
(viii) sales, transfers or dispositions of assets resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of; and
(ix) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may ; provided that, if any such dissolved or liquidated Subsidiary is a Loan Party, such Subsidiary shall sell, transfer or otherwise dispose of property and assets, including Equity Interests of a Subsidiary, either directly its assets to another Loan Party prior to or through a concurrently with such dissolution or liquidation; provided that any such merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, consolidation involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a wholly-owned Restricted SubsidiarySubsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04; provided further that (i) such when any Restricted Subsidiary Guarantor shall be is merging or consolidating with or into an Unrestricted Subsidiary and the Restricted Subsidiary is not the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor Borrower shall have delivered to complied with the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementrequirements of Section 5.10.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably relatedrelated thereto, incidental reasonable extensions thereof or ancillary thereto or that is a reasonable extension thereofcomplimentary thereto.
(c) The Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sellchange its fiscal year from the basis in effect on the Effective Date, transfer, lease or otherwise dispose in each case other than to match the fiscal year of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property Restricted Subsidiary to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination fiscal year of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 2 contracts
Samples: Credit Agreement (Myriad Genetics Inc), Credit Agreement (Myriad Genetics Inc)
Fundamental Changes and Asset Sales. (a) The Borrower Capri Holdings will not, and will not permit any Restricted Subsidiary to, merge into or amalgamate or consolidate with any other Person, or permit any other Person to merge into or amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in consummate a series of transactions) all of its assets, or all or substantially all of Division as the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired)Dividing Person, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person Subsidiary (other than a Borrower) may merge into or consolidate or amalgamate with Capri Holdings in a transaction in which Capri Holdings is the Borrower surviving entity (subject to providing such documents with respect to the surviving entity as may be reasonably required by the Administrative Agent);
(ii) any Subsidiary may merge into or consolidate or amalgamate with (subject to providing such documents as may be reasonably required by the Administrative Agent) the Company in a transaction in which the Borrower Company is the surviving corporation;
entity (ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging subject to providing such documents with a Restricted Subsidiary, the Loan Party shall be respect to the surviving entityentity as may be reasonably required by the Administrative Agent);
(iii) any Subsidiary (other than the Borrower Company) may merge into or consolidate or amalgamate with any Restricted other Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to (other than the Borrower or any Restricted Subsidiary; provided that if a transferor Company) in such a transaction in which the surviving entity is a Subsidiary (and if the surviving entity is a Loan Party, then subject to providing such documents with respect to the transferee must surviving entity as may be reasonably required by the Administrative Agent); provided that (x) in the case of a merger, consolidation or amalgamation of a Subsidiary that is not a Foreign Subsidiary Borrower into or with a Foreign Subsidiary Borrower in which the surviving entity is not the Foreign Subsidiary Borrower, the surviving Subsidiary shall be an Eligible Foreign Subsidiary and shall execute and deliver to the Administrative Agent a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and shall satisfy the other conditions precedent set forth in Section 4.03), and (y) in the case of a merger, consolidation or amalgamation of a Subsidiary that is not a Guarantor into or with a Guarantor, the surviving company shall be a Loan Party;Guarantor and (z) in the case of a merger, consolidation or amalgamation of a Subsidiary that is not a Grantor into or with a Grantor, the surviving company shall be a Grantor; and
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vother than a Borrower) any Restricted Subsidiary may liquidate or dissolve if the Borrower Capri Holdings determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Capri Holdings and its Subsidiaries and is not materially disadvantageous to the Lenders; (it being understood that such liquidation or dissolution shall be deemed materially disadvantageous to the Lenders to the extent resulting in a release of Collateral or termination of security interest in the
(v) Capri Holdings or any Subsidiary may effect any Investment permitted by Section 6.04 by means of a merger, consolidation or amalgamation of or with the Person that is the subject of such Investment with Capri Holdings or any of its Subsidiaries (provided that, (i) in the case of a merger or amalgamation with any Loan Party, the Loan Party is the survivor and (ii) in the case of a merger or amalgamation with any Grantor, a Grantor is the survivor);
(vi) Capri Holdings or any Subsidiary may effect the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andTransactions;
(vii) so long as no Default exists any Subsidiary (other than a Borrower) may change its legal form and any Domestic Subsidiary may be a party to a merger the sole purpose of which is to reincorporate or would result therefromreorganize in another jurisdiction in the United States if, in any such case, Capri Holdings reasonably determines in good faith that such action is in the best interests of Capri Holdings and its Subsidiaries and is not materially disadvantageous to the Lenders (it being understood that a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted SubsidiaryLoan Party will remain a Loan Party); provided and and it being understood that (i) such Subsidiary Guarantor action shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory deemed materially disadvantageous to the Administrative AgentLenders to the extent resulting in a release of Collateral or termination of security interest in the Collateral securing the Secured Obligations after giving effect to any additional Collateral Documents, or amendments to existing Collateral Documents, executed and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent and other actions taken thereunder in connection with such liquidation or dissolution); and
(viii) any Subsidiary that is an officer’s certificate stating that such merger or consolidation and such supplement to LLC may consummate a Division as the Subsidiary Guaranty comply with this Agreement; providedDividing Person if, further, that if immediately upon the foregoing are satisfiedconsummation of the Division, the Successor Company will succeed toassets of the applicable Dividing Person are held by one or more Subsidiaries at such time, and be substituted foror with respect to assets not so held by one or more Subsidiaries, such Subsidiary Guarantor under Division, in the aggregate, would otherwise result in Disposition permitted by this AgreementSection 6.03.
(b) The Borrower Capri Holdings will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, engage to any material extent Dispose of (in any business other than businesses one or in a series of transactions) all or substantially all of the type conducted by the Borrower assets of Capri Holdings and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is taken as a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any whole.any of its property (including, without limitation, receivables and leasehold interests), whether now owned or assetshereafter acquired, including or, in the case of any Subsidiary, sell any shares of such Subsidiary’s Equity Interests owned by it (it being understood that the grant or existence of a Lien on to any property shall not constitute a sale, transfer, lease or other disposition of such property)Person, except:
(i) dispositions the sale, lease or sales transfer of inventoryproperty or assets from (i) a Loan Party to another Loan Party; provided that promptly after any such sale, usedlease or transfer, obsolete all actions reasonably required by the Administrative Agent shall be taken to insure the continued perfection of the Liens created by the Collateral Documents on any Collateral, (ii) a Subsidiary that is not a Loan Party to Capri Holdings or surplus any other Subsidiary or (iii) a Loan Party to a Subsidiary that is not a Loan Party; provided, that for the purposes of this subclause (iii), (A) to the extent constituting an Investment, such Investment must be a permitted Investment in in accordance with Section 6.04 or (B) to the extent constituting a Disposition, such Disposition is for fair value; provided, further, that this clause (i) shall not permit any assignment or transfer of any Intellectual Property Collateral or Equity Interests of an IP Subsidiary unless Capri Holdings shall cause the transferee Subsidiary to, on or prior to making such Disposition, enter into any Collateral Documents reasonably requested by the Administrative Agent in its reasonable discretion and substantially consistent with existing Collateral Documents in order to maintain a perfected first priority security interest in such Intellectual Property Collateral in favor of the Administrative Agent and for the benefit of the Secured Parties to secure the Secured Obligations;
(ii) Dispositions of (A) surplus, obsolete, damaged or worn out property or property no longer used or useful in the business of such Person, whether now owned or hereafter acquired and (B) assets resulting from a casualty event;
(iii) Dispositions of inventory in the ordinary course of business and liquidations of Permitted Investments;
(iv) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(v) leases, licenses, subleases or sublicenses granted in the ordinary course of business or consistent with past practice or industry norm;
(vi) (i) the lapse of Intellectual Property rights to the extent such Intellectual Property rights are not, in Capri Holdings’ reasonable business judgment, economically desirable in the conduct of the business of Capri Holdings and Permitted Investments its Subsidiaries or (ii) the abandonment, cancellation or disposition of Intellectual Property rights in the ordinary course of business;
(iivii) as long as no Default exists the discount, write-off, forgiveness or would result therefromDisposition of accounts receivable in the ordinary course of business or consistent with past practice or industry norm or in connection with collection, sales, transfers, leases and other dispositions of property to the Borrower settlement or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06compromise thereof;
(iiiviii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility Payments permitted by Section 6.01(h6.07, Investments permitted by Section 6.04, Liens permitted by Section 6.02 and the consummation of a transaction permitted by Section 6.03(a);
(vix) salesany involuntary loss, transfers damage or destruction of property or any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property;
(x) (i) the sale or other Disposition of any contracts or the early termination or modification of any contract, or (ii) the surrender or waiver of contract rights or settlement, release or surrender of a contract, tort or other litigation claim, in each case, in Capri Holdings’ reasonable business judgment, desirable in the conduct of the business of Capri Holdings and other dispositions its Subsidiaries;
(xi) if required by applicable law, the sale of the Equity Interests of any Foreign Subsidiary to (A) foreign nationals to the extent required by applicable law or (B) in order to render eligible under applicable law the members of the governing body of such Foreign Subsidiary;
(xii) the Disposition of any Swap Agreement, Convertible Debt Security or Permitted Call Spread Swap Agreement due to any termination, settlement, extinguishment or unwinding thereof;
(xiii) any issuance of Equity Interests of a Subsidiary to a Loan Party or another Subsidiary;
(xiv) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, to customary buy/sell arrangements or rights of first refusal between between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vixv) Dispositions of property or assets (i) acquired after the lapse Effective Date which property or abandonment assets are not used or useful to the core or principal business of intellectual property rights the Capri Holdings and its Subsidiaries in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
Capri Holdings or (viiii) dispositions of receivables that are made in connection with the compromise, settlement approval of any applicable antitrust authority or collection thereof as otherwise necessary or advisable in the ordinary course good faith determination of business or in bankruptcy or similar proceedings;
(viii) Capri Holdings to consummate any surrender or waiver of contract rights or the settlementPermitted Acquisition, release, recovery on or surrender of contract, tort Investment or other claims transaction; provided that no Intellectual Property Collateral or Equity Interests of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed an IP Subsidiary shall be Disposed of pursuant to this clause (xixv);
(xvi) during Dispositions in connection with any Supply Chain Financing permitted hereunder;
(xvii) Dispositions of accounts receivable and related assets owing to Capri Holdings or any Subsidiary from a customer thereof or tax receivables owing to a Foreign Subsidiary from an applicable taxing authority and which are sold, by Capri Holdings or such Subsidiary as “true sales” to a third-party financial institution purchaser (but excluding, for the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”)avoidance of doubt, do not constitute a Substantial Portion sale of all or substantially all of the accounts receivable of Capri Holdings or any of its Subsidiaries generally and also excluding any sale pursuant to an accounts receivable securitization or similar facility); and
(xviii) Dispositions of property to Persons other than Subsidiaries (including the sale or issuance of Equity Interests of a Subsidiary, but excluding Dispositions (in one or in a series of transactions) of all or substantially all of the Borrower assets of Capri Holdings and the Restricted Subsidiariesits Subsidiaries taken as a whole) not otherwise permitted under this Section 6.03(b); provided that all sales(A) no Event of Default shall exist at the time of, transfersor would result from, leases and such Disposition (other dispositions than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default existed or would have resulted from such Disposition), (B) Capri Holdings or a Subsidiary shall receive not less than the fair market value of the applicable property made at the time of such Disposition or at the time a binding commitment for such Disposition was executed, (C) with respect to any Disposition pursuant to this clause (xixviii) for a purchase price in excess of $10,000,000, Capri Holdings or a Subsidiary shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more receive not less than $50,000,000, then at least 75% of such consideration in the consideration therefor form of cash or Permitted Investments and (D) Capri Holdings or such Subsidiary shall comply with the requirements of Section 2.11(b)(vi); provided, however, that for the purposes of this clause (C), (1) any liabilities (as shown on the most recent balance sheet of Capri Holdings provided hereunder or in the footnotes thereto) of Capri Holdings or such Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the Obligations under the Loan Documents, that are assumed by the transferee with respect to the applicable Disposition and for which Capri Holdings and its Subsidiaries shall have been validly released in writing, shall be in deemed to be cash, (2) any securities received by Capri Holdings or such Subsidiary from such transferee that are converted by Capri Holdings or such Subsidiary into cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% Permitted Investments (to the extent of the Consolidated Total Assets as of cash or Permitted Investments received) within 180 days following the last day of the last month before the start closing of the applicable Calculation PeriodDisposition, shall be deemed to be cash and (3) any Designated Non-Cash Consideration received by Capri Holdings or such Subsidiary in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (xviii) that is at that time outstanding, not in excess of $75,000,000, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash.
Appears in 2 contracts
Samples: Credit Agreement (Capri Holdings LTD), Credit Agreement (Capri Holdings LTD)
Fundamental Changes and Asset Sales. (ai) The Borrower Parent Guarantor will not, and will not permit Lessee or any Restricted other Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including pursuant to a Sale and Leaseback Transaction) all of its assets, or all or substantially all of the Equity Interests assets of any of the Parent Guarantor and its Restricted Subsidiaries (in each case, taken as a whole) (whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(iA) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, any Person (other than the Parent Guarantor or any of its Subsidiaries) may merge or consolidate with the Parent Guarantor or any of its Subsidiaries; provided that any such merger or consolidation involving (1) the Lessee must result in the Lessee as the surviving entity, (2) the Parent Guarantor must result in the Parent Guarantor as the surviving entity and (3) a Subsidiary Guarantor must result in a Subsidiary Guarantor as the surviving entity;
(B) any Person Subsidiary may merge into or consolidate with the Borrower Parent Guarantor, the Lessee, a Subsidiary Guarantor or a Bank Credit Agreement Specified Loan Party in a transaction in which the Borrower surviving entity is the Parent Guarantor, the Lessee, such Subsidiary Guarantor or such Bank Credit Agreement Specified Loan Party; provided that any such merger or consolidation involving (1) the Lessee must result in the Lessee as the surviving corporationentity, (2) the Parent Guarantor must result in the Parent Guarantor as the surviving entity and (3) a Subsidiary Guarantor must result in a Subsidiary Guarantor as the surviving entity;
(iiC) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into (i) the Borrower or (ii) one consolidate with, or more Restricted Subsidiaries (provided that when a Restricted sell, transfer, lease or otherwise dispose of any or all of its assets to, another Subsidiary that is not a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity)Subsidiary Guarantor;
(iiiD) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all any or substantially all of its assets to the Borrower Parent Guarantor, the Lessee, a Subsidiary Guarantor or any Restricted Subsidiary; provided that if a transferor Bank Credit Agreement Specified Loan Party (in such connection with a transaction is a Loan Partyliquidation, then the transferee must be a Loan Party;
(iv) the Borrower winding up or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h)dissolution or otherwise);
(vE) any Restricted Subsidiary that is not a Subsidiary Guarantor may liquidate liquidate, wind up or dissolve (1) if the Borrower Parent Guarantor determines in good faith that such liquidation liquidation, winding up or dissolution is in the best interests of the Borrower Parent Guarantor and is not materially disadvantageous to the LendersParticipants or (2) to the extent undertaken in good faith for the purpose of improving the overall tax efficiency of the Parent Guarantor and its Subsidiaries;
(viF) the Borrower Parent Guarantor and the Restricted its Subsidiaries may dispose consummate Permitted Restructurings;
(G) the Parent Guarantor and its Subsidiaries may enter into, terminate or modify leases, subleases, licenses and sublicenses of technology and other property (1) in the ordinary course of business, (2) between or among the Parent Guarantor, the Lessee, any Subsidiary Guarantors and assets, including Equity Interests any of a Subsidiary, either directly their Subsidiaries (or through a merger any combination thereof) or consolidation, to the extent (3) as permitted by clause Article VI of the Lease;
(cH) of this Sectionthe Parent Guarantor and its Subsidiaries may incur Liens permitted under Section 9(b); and
(viiI) so long as no Default exists with respect to any rights, title or would result therefrominterest of the Parent Guarantor and its Subsidiaries in the Collateral and the Purchase Agreement, a Subsidiary Guarantor may merge leases, subleases, assignments and other transfers pursuant to or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be permitted by the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such PersonOperative Documents, the “Successor Company”) is not such Subsidiary Guarantor, including (A) the Successor Company shall be an entity organized or existing assignment of certain rights under the laws Purchase Agreement (including the right to take title to the Facility) pursuant to the Assignment of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, Purchase Agreement and (B) the Successor Company shall expressly assume all assignment or other transfer by the obligations of such Parent Guarantor to a directly or indirectly wholly-owned Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party as an affiliate transferee pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementOperative Documents.
(bii) The Borrower Parent Guarantor will not, and will not permit Lessee or any of its Restricted Subsidiaries other Subsidiary to, engage to any material extent in any business other than substantially different from businesses of the type conducted by the Borrower Parent Guarantor and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with on the compromiseDocument Closing Date and businesses reasonably related, settlement ancillary, similar, complementary or collection thereof in the ordinary course of business synergistic thereto or in bankruptcy reasonable extensions, development or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodexpansion thereof.
Appears in 2 contracts
Samples: Participation Agreement (Regeneron Pharmaceuticals Inc), Guaranty (Regeneron Pharmaceuticals Inc)
Fundamental Changes and Asset Sales. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into into, amalgamate with or consolidate with any other Person, or permit any other Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate liquidate, dissolve or dissolvewind-up, except that:
(i) any Person (other than any Borrower) may merge into the Borrower into, amalgamate with or consolidate with Parent in a transaction in which the Borrower Parent is the surviving corporation;
(ii) (x) any Person (other than Parent, any Borrower or any Intermediate Parent Entity) may merge into, amalgamate with or consolidate with any Restricted Subsidiary may merge into (i) of Parent in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that surviving entity is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be (y) any Person (including any Intermediate Parent Entity) may merge into, amalgamate with or consolidate with any other Intermediate Parent Entity in a transaction in which the surviving entity)entity is an Intermediate Parent Entity and (z) any Borrower may merge into, amalgamate with or consolidate with Parent, any Intermediate Parent Entity or any other Restricted Subsidiary so long as such Borrower is the surviving entity or the surviving entity assumes all the obligations of such Borrower under this Agreement and the other Loan Documents and the successor Borrower is organized in (x) the same jurisdiction as such Borrower, (y) the same jurisdiction as a co-Borrower on the same Class of Loan or (z) a jurisdiction reasonably agreed to by the Administrative Agent and each materially and adversely affected Lender;
(iii) the any Restricted Subsidiary (other than any Borrower or any Intermediate Parent Entity) may merge into, amalgamate with or consolidate with any Person in a transaction permitted under clauses (xv), (xix) and (xx) hereunder in which the surviving entity is not a Subsidiary;
(iv) (x) any Restricted Subsidiary (other than any Borrower or any Intermediate Parent Entity) may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding-up or otherwise) to the Borrower Parent or any other Restricted SubsidiarySubsidiary of Parent; provided that if a transferor in (i) the foregoing shall not permit the voluntary liquidation, dissolution of winding up of any Borrower and (ii) any such a transaction is Disposition made by a Loan Party, then the transferee must be Party to a Restricted Subsidiary that is not a Loan Party;
Party shall be made in compliance with Section 6.04 and (ivy) the Borrower any Intermediate Parent Entity may dispose of any or all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject other Intermediate Parent Entity or to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))Parent;
(v) any Restricted Subsidiary (other than any Borrower) may liquidate liquidate, dissolve or dissolve wind-up if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other disposition of Intellectual Property that is, in the reasonable judgment of Parent, no longer economically practicable to maintain or useful in the conduct of the business of Parent and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions (or would result therefrom, a Subsidiary Guarantor may merge any license or consolidate with sublicense of Intellectual Property) to Parent or any other Person that is not a Restricted Subsidiary; provided that any such Disposition (ior any license or sublicense of Intellectual Property) such made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 6.04;
(ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (Aviii) the Successor Company discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(ix) leases, subleases, licenses or sublicenses of property to other Persons in the ordinary course of business, in each case, not materially interfering with the business of Parent and the Restricted Subsidiaries taken as a whole;
(x) Liens incurred in compliance with Section 6.02;
(xi) Investments permitted by Section 6.04;
(xii) subject to Section 2.11(c)(1), dispositions of property as a result of a casualty event involving such property or any disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that the consideration received shall be in an entity organized amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Parent);
(xv) sales or existing under the laws other Dispositions of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company non-core assets acquired in a Permitted Acquisition; provided that such sales shall expressly assume all the obligations be consummated within 360 days of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this AgreementPermitted Acquisition; provided, further, that if (i) the foregoing consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Parent) and (ii) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (ii), Parent shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of Parent and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed $10,000,000 for each such Disposition);
(xvi) any Immaterial Asset Sale;
(xvii) any lease or sublease by Parent or any Restricted Subsidiary of a portion of its interest in its headquarters located in Malvern, Pennsylvania;
(xviii) Parent or any Restricted Subsidiary may transfer, sell and/or pledge Receivables and Permitted Receivables Facility Assets under Permitted Receivables Facilities;
(xix) Dispositions of assets that are satisfiednot permitted by any other clause of this Section 6.03; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xix) shall not at the time of and immediately after giving effect to any such transaction exceed in any fiscal year the greater of (x) $275,000,000 and (y) 35.0% of Consolidated EBITDA at the end of the immediately preceding fiscal year of Parent;
(xx) Dispositions of assets (but not Equity Interests in any Restricted Subsidiary unless such Restricted Subsidiary is not a Borrower (or a direct or indirect holding company thereof)) that are not permitted by any other clause of this Section 6.03; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Parent) and (y) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (y), Parent shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of Parent and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed, in the aggregate for all such Dispositions, the Successor Company will succeed togreater of (1) $150,000,000 and (2) 20.0% of Consolidated EBITDA as of the end of the Reference Period);
(xxi) the issuance of Equity Interests by a Restricted Subsidiary that represents all or a portion of the consideration paid by Parent or a Restricted Subsidiary in connection with any Investment permitted by Section 6.04, and be substituted forincluding in connection with the formation of a joint venture with a Person other than a Restricted Subsidiary;
(xxii) Dispositions of Equity Interests (I) deemed to occur upon the exercise of stock options, warrants or other equity derivatives or settlement of convertible securities if such Subsidiary Guarantor under this AgreementEquity Interests represent (i) a portion of the exercise price thereof or (ii) withholding incurred in connection with such exercise or (II) upon the exercise of any Permitted Warrant; and
(xxiii) Dispositions of the Equity Interests of, or the assets or securities of, Unrestricted Subsidiaries.
(b) The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Parent and its Restricted Subsidiaries on the date of execution of this Agreement Effective Date and any business businesses reasonably related, incidental or ancillary related thereto or that is a similar or complementary thereto or reasonable extension thereofextensions thereof (including, but not limited to the business of diagnostics, medical devices, delivery technologies and biotechnology).
(c) The Borrower will not, and Parent will not permit any of change its fiscal year from the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property basis applicable to Parent prior to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 2 contracts
Samples: Credit Agreement (Endo, Inc.), Credit Agreement (Endo, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower No Loan Party or Subsidiary will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) any other Person, or permit any other Person to merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) it, or sell, transfer, lease or otherwise dispose (each, a “disposal” or “disposition”) of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries assets (in each case, whether now owned or hereafter acquired)) to any Person, or liquidate or dissolve. Notwithstanding the foregoing the following, except thatshall be permitted:
(i) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person may merge into merge, consolidate or amalgamate (or engage in a substantially similar transaction) with the Borrower in a transaction in which the Borrower is the surviving corporation;entity (provided that if a Subsidiary Borrower merges or consolidates with or into Parent, Parent is the surviving corporation and Parent has assumed such Borrower’s obligations hereunder as the Borrower),
(ii) any Restricted Subsidiary may merge into merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any other Subsidiary in a transaction in which the surviving entity is a wholly-owned Subsidiary (in the case of a Loan Party, subject to preceding clause (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);),
(iii) assets or equity interests of any Subsidiary may be disposed of to any other wholly-owned Subsidiary or to the Parent or by the Borrower to another Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to by the Borrower or any Restricted to a wholly-owned Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;,
(iv) the Borrower Parent or any Subsidiary may transferdispose of assets or property to any other Person; provided, sell and/or pledge Permitted Receivables Related Assets that, the aggregate book or fair market value of all assets disposed (to a Person other than the Parent, the Borrower or any other wholly-owned Subsidiary) under Permitted Receivables Facilities this clause (subject to the limitation that the Attributable Receivables Indebtedness thereunder iv) during any fiscal year of Parent shall not exceed an aggregate amount permitted under Section 6.01(h));15% of the total consolidated assets of the Parent and its consolidated Subsidiaries, determined in accordance with GAAP, measured as of the last day of the immediately preceding fiscal year for which financial statements have been or were required to be delivered pursuant to this Agreement,
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted its Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments inventory in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;,
(vi) Parent and its Subsidiaries may transfer assets in connection with a Financing Arrangement permitted under Section 6.03,
(vii) the lapse Parent or abandonment any Subsidiary may lease, as lessor or sublessor, or license, as licensor or sub licensor, real or personal property (other than any intellectual property) in the ordinary course of business, provided that no such lease or license shall materially interfere with the ordinary course of business of the Parent or any Subsidiary,
(viii) the Parent or any Subsidiary may liquidate or sell Cash Equivalents,
(ix) the Parent or any Subsidiary may, in the ordinary course of business, licence or sublicense intellectual property rights owned or held by the Parent or such Subsidiary,
(x) the Parent or any Subsidiary may dispose of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business which, and may dispose of property no longer used or useful in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement Parent or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; andSubsidiary,
(xi) the Parent or any Subsidiary may sell Receivable Assets to a Securitization Entity in addition a Qualified Securitization Transaction for the fair market value thereof; provided that at no time shall more than US$1,000,000,000 (or its equivalent in another currency or currencies) in fair market value of assets be subject to such Qualified Securitization Transaction,
(xii) any Subsidiary may pay dividends or make any other distribution,
(xiii) the Parent may pay cash dividends (or dividends paid in the form of common equity of the Parent) to its shareholders, to the dispositions permitted by extent lawful, and
(xiv) any Subsidiary may liquidate or dissolve (with any residual assets being applied in accordance with one of the other clauses of this Section 6.03(c6.01), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 2 contracts
Samples: Credit Agreement (Teva Pharmaceutical Industries LTD), Credit Agreement (Teva Pharmaceutical Industries LTD)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assets, rights or all property (including Intellectual Property) (including pursuant to a Sale and Leaseback Transaction), or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) (A) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower surviving entity is such Loan Party or (ii) one or more Restricted Subsidiaries in which such surviving entity becomes a Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity), and (B) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party;
(iii) the Borrower or (A) any Restricted Subsidiary Loan Party may sell, transfer, lease or otherwise dispose of all its assets to any other Loan Party and (B) any Subsidiary that is not a Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower any Loan Party or any Restricted Subsidiary; provided another Subsidiary that if a transferor in such a transaction is not a Loan PartyParty and (C) any Loan Party may sell, then the transferee must be transfer, lease or otherwise dispose of its assets to a Subsidiary that is not a Loan PartyParty in the ordinary course of business and at fair market value (as reasonably determined by the Borrower) or in an aggregate amount not to exceed $80,000,000 in any fiscal year of the Borrower;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) (1) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business and (2) dispose of obsolete or worn out property, including involuntary loss, damage or destruction of property, (C) enter into licenses of Intellectual Property in the ordinary course of business (including, intercompany licensing of Intellectual Property between the Borrower and any Subsidiary may transferand between Subsidiaries in connection with cost-sharing arrangements, distribution, marketing, make-sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities or other similar arrangements) and (subject to D) make any other sales, transfers, leases or dispositions that, together with all other property of the limitation that Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) (1) does not exceed $150,000,000 during any fiscal year of the Attributable Receivables Indebtedness thereunder shall Borrower and (2) does not exceed an aggregate amount permitted under Section 6.01(h))of $450,000,000 from and after the Restatement Effective Date;
(vA) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersLenders and (B) any Subsidiary that is a Loan Party may liquidate or dissolve to facilitate internal reorganizations;
(vi) the Borrower and the Restricted its Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andconsummate Permitted Acquisitions;
(vii) so long as no Default exists the Borrower and its Subsidiaries may consummate Sale and Leaseback Transactions that are otherwise permitted by Section 6.01(e) and Section 6.02(d);
(viii) the sale or would result therefromdiscount, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor in each case without recourse, of account receivables, including factoring and similar transactions, in each case arising in the ordinary course of business shall be permitted but only in connection with the continuing compromise or surviving entity collection thereof (including through factoring and similar transactions);
(ix) to the extent constituting a transfer or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantordisposition, (A) the Successor Company shall be an entity organized or existing under the laws making of the United States, any state or commonwealth thereof, the District of Columbia Investment permitted pursuant to Section 6.04 or any territory thereof, Restricted Payment permitted pursuant to Section 6.07 and (B) the Successor Company creation, incurrence or assumption of any Lien permitted under Section 6.02 shall expressly assume all be permitted;
(x) the obligations use, transfer or disposition of such cash or Permitted Investments in a manner that is not prohibited by the terms of this Agreement shall be permitted;
(xi) the Borrower and its applicable Subsidiaries may transfer to any Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party any property acquired pursuant to a supplement hereto Permitted Acquisition to facilitate internal reorganizations;
(xii) the abandonment or thereto other disposition of immaterial Intellectual Property or rights therein (including allowing any registrations or applications for registrations of any Intellectual Property or rights therein to lapse or go abandoned) shall be permitted;
(xiii) the surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in form reasonably satisfactory the ordinary course of business shall be permitted;
(xiv) the unwinding, settlement or termination of any Swap Agreement permitted under Section 6.05 shall be permitted;
(xv) with respect to Intellectual Property acquired pursuant to the Administrative AgentMicrosemi Acquisition, and (C) such Subsidiary Guarantor shall have delivered any sales, transfers, licenses or other dispositions by any Loan Party to the Administrative Agent an officer’s certificate stating Borrower or its Subsidiaries of rights in respect of such Intellectual Property outside of North America and South America shall be permitted, provided that such merger sales, transfers, licenses and dispositions are made to facilitate (1) internal corporate reorganizations, (2) tax structuring strategies, and/or (3) Intellectual Property protection or consolidation and such supplement exploitation strategies and, in each case, not in connection with the incurrence by the Borrower or any Subsidiary of Indebtedness and, to the Subsidiary Guaranty comply extent determined by the Borrower in its business judgment, with this Agreement; providedpreference given to structures where the legal title of such Intellectual Property remains with a Loan Party;
(xvi) sales, furthertransfers or other dispositions of assets acquired pursuant to a Permitted Acquisition (including the Microsemi Acquisition) that in the judgment of the Borrower’s management are not necessary or desirable to carry out the Borrower’s business plans shall be permitted, that if to the foregoing extent binding agreements or letters of intent providing for such sales, transfers or other dispositions are satisfiedentered into within 12 months (or 24 months in the case of the Microsemi Acquisition) after the acquisition of such assets;
(xvii) sales, transfers or other dispositions of assets acquired required by any Governmental Authority pursuant to the Successor Company will succeed to, and terms of the Microsemi Acquisition Agreement shall be substituted for, such Subsidiary Guarantor under this Agreementpermitted.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year for GAAP purposes from the basis in effect on the Restatement Effective Date; provided, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance acquired after the Restatement Effective Date may change its fiscal year for GAAP purposes to correspond with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period’s fiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Microchip Technology Inc), Credit Agreement (Microchip Technology Inc)
Fundamental Changes and Asset Sales. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (other than Unrestricted Margin Stock) (including pursuant to a Sale/Leaseback Transaction), or all or substantially all any of the Equity Interests (other than Unrestricted Margin Stock) of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the or consolidate with a Borrower or Parent in a transaction in which the such Borrower or Parent, as applicable, is the surviving corporation;
(ii) any Restricted Subsidiary Person (other than Parent and each Borrower) may merge into (i) or consolidate with any Restricted Subsidiary in a transaction in which the Borrower or (ii) one or more surviving entity is such Restricted Subsidiaries Subsidiary (provided that when any such merger, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in the surviving entityentity becoming a Subsidiary Guarantor);
(iii) the Borrower or any Restricted Subsidiary (other than a Borrower) may sell, transfer, lease merge into or otherwise dispose of all or substantially all of its assets to the Borrower or consolidate with any Restricted Subsidiary; provided that if a transferor Person in such a transaction permitted under clauses (xiv), (xv) and (xvii) hereunder in which the surviving entity is not a Loan Party, then the transferee must be a Loan PartySubsidiary;
(iv) the Borrower any Restricted Subsidiary (other than a Borrower) may Dispose of any or all of its assets (upon voluntary liquidation, dissolution or otherwise) to Parent or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))other Loan Party;
(v) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other Dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other Disposition of intellectual property that is, in the reasonable judgment of Parent, no longer economically practicable to maintain or useful in the conduct of the business of Parent and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions to Parent or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) any such Disposition made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 7.04 and (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) Equity Interests of a Loan Party may not be transferred to a Subsidiary that is not such Subsidiary Guarantor, a Loan Party;
(Aviii) the Successor Company discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(ix) leases, subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of Parent and the Restricted Subsidiaries taken as a whole;
(x) Liens permitted by Section 7.02;
(xi) Investments permitted by Section 7.04;
(xii) subject to Section 2.09(c)(iii), dispositions of property as a result of a Casualty Event involving such property or any disposition of real property to a Governmental Authority as a result of a Condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures or investments in Persons that are not Subsidiaries, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties or investors set forth in joint venture arrangements, investor rights agreements and/or similar binding arrangements;
(xv) sales or other Dispositions of non-core assets acquired in any Permitted Acquisition or other Investment; provided that such sales shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations consummated within two years of such Subsidiary Guarantor under the Subsidiary Guaranty acquisition or Investment; and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if (i) the foregoing consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) either (A) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash, or (B) a Borrower, substantially concurrently with the receipt of any non-cash consideration (and in any event within one Business Day), prepays (or cause to be prepaid) the Loans in an amount equal to the amount by which the fair market value of the non-cash consideration exceeds 25% of such consideration, such prepayment to be made in accordance with Section 2.09(c)(iii);
(xvi) any Immaterial Asset Sale;
(xvii) Dispositions of assets that are satisfiednot permitted by any other clause of this Section 7.03; provided that the Disposition Consideration of all assets sold, the Successor Company will succeed totransferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xvii) shall not at the time of and immediately after giving effect to any such transaction exceed $200,000,000 in any fiscal year; and provided, further, that (i) the consideration received for such assets shall be substituted forin an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash;
(xviii) the surrender, waiver or settlement of contractual rights in the ordinary course of business, or the surrender, waiver or settlement of claims and litigation claims (whether or not in the ordinary course of business);
(xix) Dispositions of Equity Interests in any Subsidiary acquired in connection with any a Permitted Acquisition prior to the time of such Subsidiary Guarantor under becoming a Wholly Owned Subsidiary, in each case pursuant to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such person becoming a Subsidiary;
(xx) any Permitted Reorganization; and
(xxi) Dispositions of assets that are not permitted by any other clause of this AgreementSection 7.03; provided that the applicable Borrower shall substantially concurrently (and in any event within one Business Day) apply 100% of the Net Cash Proceeds thereof to prepay (or cause to be prepaid) the Loans in accordance with Section 2.09(c)(iii) (it being understood that such Net Cash Proceeds shall not constitute Reinvestment Funds); and provided, further, that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash.
(b) The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Parent and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental related or ancillary thereto or that is a similar or complementary thereto or reasonable extension extensions thereof.
(c) The Borrower Parent will not, and nor will not it permit any of the its Restricted Subsidiaries to, sellchange its fiscal year from the basis in effect on the Closing Date; provided, transferhowever, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a saleLoan Parties may, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property upon written notice to the Borrower or a Restricted Subsidiary; provided that Administrative Agent, change their respective fiscal years to any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures fiscal year reasonably acceptable to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business whichAdministrative Agent, in which case, the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Lead Borrower and the Restricted Subsidiaries previously disposed of pursuant Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this clause (xi) during the twelveAgreement that are necessary to reflect such change in fiscal year. - 140 -month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests stock of any of its Restricted Subsidiaries the Subsidiary Loan Parties (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) any Person Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
, (ii) any Restricted Subsidiary may merge into (i) any Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (surviving entity is a Subsidiary; provided that when a Restricted to the extent either such Subsidiary that is a Subsidiary Loan Party is merging with a Restricted SubsidiaryParty, the Loan Party surviving entity shall be the surviving entity);
a Subsidiary Loan Party, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted to another Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of ; provided that any such merger involving a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiarywholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04, (v) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in amount at least equal to the fair market value thereof, (vi) Borrower or its Subsidiaries may make Specified Asset Sales provided that, such Specified Asset Sales can be made for Cash or non-Cash consideration until the amount of non-Cash consideration exceeds $10,000,000 in the aggregate; thereafter, such Specified Asset Sales shall be made for at least 66 2/3% in Cash (provided that the limitation with respect to Cash consideration set forth in this Section 6.03(vi) shall not apply to the asset sales described under clause (iv) of the definition of Specified Asset Sales), (vii) Borrower or its Subsidiaries may take any action permitted by Section 6.04 below to the extent constituting an Asset Sale, (viii) subject to Section 6.16, Borrower and its Subsidiaries may make Asset Sales (other than Specified Asset Sales) having an aggregate fair market value not in excess of $20,000,000 in any fiscal year; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company consideration received for each such Asset Sale shall be in an entity organized or existing under amount at least equal to the laws of the United States, any state or commonwealth fair market value thereof, the District of Columbia or any territory thereof, ; (B) the Successor Company shall expressly assume all the obligations of consideration for each such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor Asset Sale is a party pursuant to a supplement hereto or thereto at least 66 2/3% in form reasonably satisfactory to the Administrative Agent, Cash and (C) the proceeds of such Subsidiary Guarantor Asset Sales shall have delivered be applied as required by Section 2.10(c), and (ix) Borrower may reorganize for the purpose of changing its jurisdiction of incorporation to the Administrative Agent an officer’s certificate stating that such merger State of Delaware or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementState of Georgia.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any businesses reasonably related thereto and that will not materially change its or its Subsidiary’s material lines of business reasonably relatedtaken as a whole as of the Closing Date. For the avoidance of doubt, incidental or ancillary thereto or that the type of business conducted by the Borrower and its Subsidiaries as of the Closing Date is a reasonable extension thereofthe franchising of food-service related businesses and the provision of directly related services and products and the distribution, wholesale and retailing of food and food related products.
(c) The Notwithstanding anything to the contrary herein, the Borrower will not, and will not permit any of may dissolve the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
following Subsidiaries: (i) dispositions or sales AFC of inventoryLouisiana, used, obsolete or surplus equipment LLC and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefromLooziana Culinary Concepts, salesLLC, transfersprovided that such dissolution shall occur within sixty (60) days following the Closing Date. If such dissolution has not occurred within sixty (60) days following the Closing Date, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any shall and shall cause AFC of Louisiana, LLC and Looziana Culinary Concepts, LLC to satisfy the Collateral and Guarantee Requirement with respect to such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable Loan Parties pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers Sections 5.11 and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses 5.13 of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodAgreement.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assets, (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except thatas permitted by any one or more of the following:
(i) any Person may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving corporation;
(ii) (A) any Restricted Subsidiary may merge or amalgamate into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted (x) any such merger involving the Company must result in the Company as the surviving entity and (y) any such amalgamation shall be accompanied by an acknowledgement or confirmation of such Loan Party’s Secured Obligations from the continuing amalgamated entity to the extent reasonably required by the Administrative Agent) and (B) any Subsidiary that is not a Loan Party may merge or amalgamate into another Subsidiary that is merging with not a Restricted Subsidiary, the Loan Party shall be the surviving entity)Party;
(iii) the Borrower or (A) any Restricted Subsidiary may sell, transfer, lease lease, distribute, dividend, or otherwise dispose of all its assets, to a Loan Party and (B) any Subsidiary that is not a Loan Party may sell, transfer, lease, distribute, dividend, or substantially all otherwise dispose of its assets to the Borrower or any Restricted Subsidiary; provided another Subsidiary that if a transferor in such a transaction is a Loan Party, then the transferee must be not a Loan Party;
(iv) the Borrower a sale or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject other transfer of property pursuant to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount a Sale and Leaseback Transaction permitted under Section 6.01(h))hereunder;
(v) sales and discounts (without recourse) of overdue accounts receivable, but only in connection with the compromise or collection thereof consistent with customary industry practice;
(vi) so long as no Event of Default is continuing or would result therefrom, sales, transfers or dispositions of non-strategic assets acquired as a part of a Permitted Acquisition which are sold for fair market value payable in cash upon such sale;
(vii) sales and trades of Cash Equivalents;
(viii) sales or other issuances of Equity Interests of the Company;
(ix) sales, transfers, distributions, dividends, or issuances of Equity Interests of any Subsidiary by such Subsidiary, any other Subsidiary, or the Company to the Company or any other Subsidiary, provided that the Administrative Agent following such sales or issuance continues to have a perfected Lien on all Equity Interests of such Subsidiary if and only to the extent it had a perfected Lien immediately prior to such issuance (excluding, in all cases Equity Interests constituting directors’ qualifying shares);
(x) any Restricted Payment permitted pursuant to Section 6.07;
(xi) the Company and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used property or obsolete property in the ordinary course of business, (C) enter into licenses of technology and intellectual property in the ordinary course of business, (D) sell or transfer any interest in accounts or notes receivable and related assets as part of a Permitted Factoring Transaction and (E) make any other sales, transfers, leases or dispositions that not otherwise specifically permitted hereby, including sales, transfers or dispositions of Equity Interests in Subsidiaries, together with all other property of the Company and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (E) during any fiscal year of the Company, does not exceed ten percent (10%) of the Company’s Consolidated Total Assets (as of the most recent fiscal period for which financial statements have been delivered pursuant to Section 5.01); and
(xii) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Company and its Restricted Subsidiaries Subsidiaries, taken as a whole, on the date of execution of this Agreement Effective Date, and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) Notwithstanding anything to the contrary in this Agreement, neither the Canadian Borrower nor Xxxxxx Canada shall sell, assign, lease, dispose or otherwise transfer (excluding by merger or amalgamation of Xxxxxx Canada with one or more other Subsidiaries so long as Xxxxxx Canada or the continuing amalgamated entity, as the case may be, remains obligated on all of the Canadian Intercompany Loan) or pledge (other than a pledge in favor of the Administrative Agent and the Lenders), all or any portion of its respective rights or obligations under the Canadian Intercompany Loan.
(d) The Borrower Company will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Belden Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assets, or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
, (ii) any Restricted Subsidiary Subsidiary/Person may merge into (i) any Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is a Subsidiary (provided that when any such merger involving a Restricted Subsidiary that is Guarantor must result in a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Subsidiary Guarantor as the surviving entity);
, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a to another Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory and excess, damaged, obsolete or any Subsidiary may transferworn out assets, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities in each case in the ordinary course of business, (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount B) enter into Sale and Leaseback Transactions permitted under Section 6.01(h));
6.10 and (C) make any other sales, transfers, leases or dispositions of property having a fair market value not in excess of, during the term of this Agreement, 10% of Consolidated Tangible Assets in the aggregate and (v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
, (1) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing and subject to Section 6.07: (i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
, (ii) any Restricted Subsidiary Subsidiary/Person may merge into (i) any Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is a Subsidiary (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (including the stock of another entity) to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then to another Subsidiary (as the transferee must be a Loan Party;
case may be) and (iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of ; provided that any such merger involving a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation shall not be permitted unless also permitted by Section 6.04 and (any such Person2) for the avoidance of doubt, the “Successor Company”) is not such Subsidiary GuarantorBorrower and its Subsidiaries may sell inventory and excess, (A) damaged, obsolete or worn out assets, in each case in the Successor Company shall be an entity organized or existing under the laws ordinary course of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementbusiness.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business businesses other than primarily in those businesses of the type now conducted by the Borrower them and its Restricted Subsidiaries on the date of execution of this Agreement in related businesses and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property those businesses permitted to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable acquired pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period6.04.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one a Subsidiary Guarantor in a transaction in which the surviving entity is the Borrower or more Restricted Subsidiaries such Subsidiary Guarantor (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iii) any Subsidiary (other than the Borrower or any Restricted Subsidiary Borrower) may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) Holdings and its Subsidiaries may (A) sell inventory in the Borrower ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of Intellectual Property, and (D) make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions that, together with all other property of Holdings and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (subject to D) during any fiscal year of the limitation that the Attributable Receivables Indebtedness thereunder shall Borrower, does not exceed an aggregate amount permitted under Section 6.01(h$75,000,000 (as of the most recently completed fiscal quarter of Holdings));; and
(v) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower Holdings will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Holdings and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower Holdings will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (American Medical Systems Holdings Inc)
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including pursuant to a Sale and Leaseback Transaction) all of its assets, or all or substantially all of the Equity Interests assets of any of the Company and its Restricted Subsidiaries (in each case, taken as a whole) (whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person (other than the Company or any of its Subsidiaries) may merge or consolidate with the Company or any of its Subsidiaries; provided that any such merger or consolidation involving the Company must result in the Company as the surviving entity; provided, further, that, any such merger or consolidation may result in such other Person being the surviving entity so long as (A) such Person that is the surviving entity shall (1) affirmatively agree, in a writing satisfactory to the Administrative Agent, to be bound by the terms of this Agreement and the other Loan Documents and shall assume the obligations hereunder and under the other Loan Documents of the Borrower (and shall thereafter be deemed to be the Borrower for purposes of this Agreement and the other Loan Documents), (2) be organized and exist under the laws of the United States, any State thereof or the District of Columbia and (3) provide to the Administrative Agent and each Lender (x) all documentation and other information regarding such Person required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and (y) to the extent such surviving Person qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Person and (B) immediately after giving effect to such merger or consolidation, (1) the Borrower shall be in compliance (on a pro forma basis, giving effect to the proviso in Section 6.04(a) if such merger or consolidation constitutes a Qualified Acquisition for which the Total Leverage Ratio is being increased pursuant to such proviso) with the covenant contained in Section 6.04, (2) no Default shall have occurred and be continuing, and (3) the Debt Ratings from at least two of Moody’s, S&P and Fitch shall be an Investment Grade Rating;
(ii) any Subsidiary may merge into or consolidate with the Borrower Company in a transaction in which the Borrower surviving entity is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity)Company;
(iii) the Borrower any Subsidiary may merge into or consolidate with, or sell, transfer, lease or otherwise dispose of any Restricted or all of its assets to, another Subsidiary (in connection with a liquidation, winding up or dissolution or otherwise);
(iv) any Subsidiary may sell, transfer, lease or otherwise dispose of all any or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transferor the Company (in connection with a liquidation, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h)winding up or dissolution or otherwise);
(v) any Restricted Subsidiary may liquidate liquidate, wind up or dissolve (A) if the Borrower Company determines in good faith that such liquidation liquidation, winding up or dissolution is in the best interests of the Borrower and is not materially disadvantageous Company or (B) to the Lendersextent undertaken in good faith for the purpose of improving the overall tax efficiency of the Company and its Subsidiaries;
(vi) the Borrower Company and the Restricted its Subsidiaries may dispose consummate Permitted Restructurings;
(vii) the Company and its Subsidiaries may enter into, terminate or modify leases, subleases, licenses and sublicenses of technology and other property (A) in the ordinary course of business or (B) between or among the Company and assets, including Equity Interests any of a Subsidiary, either directly its Subsidiaries (or through a merger any combination thereof);
(viii) the Company and its Subsidiaries may incur Liens permitted under Section 6.02 (other than by reference to this Section 6.03 (or consolidation, to the extent permitted by any sub-clause (c) of this Sectionhereof)); and
(viiix) so long as no Default exists the Company and its Subsidiaries may sell, transfer or would result therefrom, a Subsidiary Guarantor may merge or consolidate otherwise dispose of Permitted Securitization Transferred Assets in connection with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementPermitted Receivables Facility.
(b) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than substantially different from businesses of the type conducted by the Borrower Company and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with on the compromiseEffective Date and businesses reasonably related, settlement ancillary, similar, complementary or collection thereof in the ordinary course of business synergistic thereto or in bankruptcy reasonable extensions, development or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodexpansion thereof.
Appears in 1 contract
Samples: Credit Agreement (Illumina, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose make any Asset Sale of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing:
(i) any Person may merge into or consolidate with the Borrower in a transaction in which (A) the Borrower is the surviving corporationcorporation or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States or any political subdivision thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Bor- rower’s obligations under this Agreement and (4) the Borrower shall have delivered (prior to or substantially concurrently with such transaction) to the Administrative Agent a certificate of an officer of the Borrower, stating that such merger or consolidation complies with this Agreement; provided that, if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents;
(ii) any Restricted Subsidiary may merge into or consolidate with another Subsidiary; provided that, except as permitted under clause (iiii) the Borrower below, any such merger or (ii) one or more Restricted Subsidiaries (provided that when consolidation involving a Restricted Subsidiary that is a Loan Party must result in such Subsidiary that is merging with a Restricted Subsidiary, the Loan Party shall be being the surviving entity)entity in such merger or consolidation;
(iii) the Borrower or in connection with a Permitted Acquisition, any Restricted Subsidiary may sellmerge or consolidate with an entity which is the surviving entity of such merger or consolidation, transferso long as such surviving entity becomes a Subsidiary and, lease or otherwise dispose of all or substantially all of its assets to if the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is non-surviving Subsidiary was a Loan Party, then the transferee must be a Loan PartyParty within the period provided in Section 5.09 or is otherwise allowed pursuant to the definition of Permitted Acquisition;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject make Asset Sales to the limitation Borrower or a Subsidiary; provided that the Attributable Receivables Indebtedness thereunder any such Asset Sales by a Loan Party to a Subsidiary that is not a Loan Party shall not exceed an aggregate amount $20,000,000 except as permitted under Section 6.01(h))clause (v) or clause (vi) below;
(v) the Borrower or any Subsidiary may make an Asset Sale to the extent permitted under Section 6.04 and 6.10;
(vi) the Borrower or any Subsidiary may:
(A) sell inventory and other assets in the ordinary course of business;
(B) effect sales, trade-ins or dispositions of used, obsolete, substantially worn or damaged property or equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(C) enter into licenses of intellectual property or other technology in the ordinary course of business;
(D) enter into leases or allow the occupancy or sub-leasing of real property in the ordinary course of business;
(E) effect sales or discounts, in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, in connection with the compromise or collection thereof;
(F) permit transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the Governmental Authority that has condemned such property (whether by deed in lieu of condemnation or otherwise), and permit transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement;
(G) create, incur and assume Liens permitted under Section 6.02; (H) make Restricted Payments permitted under Section 6.07;
(I) voluntarily terminate any Swap Agreement;
(J) allow the lapse of registered patents, trademarks and other intellectual property if such lapse could not reasonably be expected to result in a Material Adverse Effect;
(K) make an Asset Sale of assets (1) that are not used or useful to the core or principal business of the Borrower and the Subsidiaries acquired pursuant to a Permitted Acquisition or an investment permitted hereunder that is consummated within twelve (12) months prior to the date of such proposed Asset Sale, or (2) to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition; provided that the Fair Market Value of such assets shall be less than 25% of the purchase price of such Permitted Acquisition or value of such investment;
(L) make any other Asset Sale so long as the book value thereof, taken together with the book value of all other assets of the Borrower and its Subsidiaries previously subject to an Asset Sale as permitted by this clause (L), does not exceed $50,000,000 in any calendar year;
(M) additional Assets Sales for Fair Market Value not otherwise permitted under this Section 6.03; provided that (1) at least 75% of the consideration for any Asset Sale under this clause (M) shall consist of cash or Permitted Investments or any combination thereof (provided that for purposes of the 75% cash and Permitted Investments consideration requirement in connection with any Asset Sale, (w) the amount of any Indebtedness or other liabilities of the Borrower and its Subsidiaries (as shown on the Borrower’s most recent consolidated balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Asset Sale, (y) any securities received by the Borrower or any Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments within one hundred eighty (180) days following the closing of such Asset Sale and (z) any Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and all Designated Non-Cash Consideration received pursuant to Section 6.10(c), that is outstanding at the time of receipt of such Designated Non-Cash Consideration in respect of such Asset Sale, not in excess of the greater of $40,000,000 and 2.0% of Consolidated Total Assets shall, in each case of clauses (w), (x), (y) and (z), be deemed to be cash or Permitted Investments) and (2) the Net Cash Proceeds thereof are reinvested in the business of the Borrower and its Subsidiaries or applied in accordance with Section 2.11(f);
(N) transfer property subject to a Casualty Event upon receipt of the Net Cash Proceeds of such Casualty Event;
(O) effect Asset Sales of investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in Joint Venture arrangements and similar binding arrangements; and
(P) effect Asset Sales of the stock or other equity interests of Evolent Health Holdings, Inc., Evolent Health, Inc. or Evolent Health LLC (or any successor to any thereof);
(vii) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is could not materially disadvantageous reasonably be expected to the Lendershave a Material Adverse Effect;
(viviii) any Subsidiary that is a Loan Party may liquidate or dissolve if substantially all of the assets (including any interest in any Equity Interest) of such liquidating or dissolving Loan Party are transferred to a Loan Party that is not liquidating or dissolving; and
(ix) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to consummate the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementTransactions.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than (i) businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date Effective Date after the consummation of execution of this Agreement the Transactions, (ii) businesses similar to the businesses referred to in clause (i) and any business (iii) businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated to the businesses referred to in clauses (i) and (ii).
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year-end to a date other than December 31, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
unless (i) dispositions or sales the Borrower shall have given sixty (60) days’ prior written notice of inventory, used, obsolete or surplus equipment such change to the Administrative Agent and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property the Administration Agent shall have consented to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made change in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the its reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddiscretion.
Appears in 1 contract
Samples: Credit Agreement (Advisory Board Co)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including (x) pursuant to a Sale and Leaseback Transaction and (y) any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (including pursuant to a Delaware LLC Division) (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more another Restricted Subsidiaries Subsidiary (provided that when a Restricted Subsidiary that is any such merger involving a Loan Party is merging with a Restricted Subsidiary, the must result in such Loan Party shall be being the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any another Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Restricted Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or any Subsidiary may transferdispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, (D) sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities rail cars owned less than one year in the ordinary course of business, (subject E) sell rail cars owned more than one year in the ordinary course of business up to $25,000,000 per year (excluding the sale of rail cars by Restricted Subsidiaries to Unrestricted Subsidiaries), (F) sell rail cars by Restricted Subsidiaries to Unrestricted Subsidiaries for cash consideration, or to the limitation that extent not for cash consideration, as otherwise permitted by Section 6.04, (G) lease inventory and, to the Attributable Receivables Indebtedness thereunder shall extent not exceed an aggregate amount permitted under Section 6.01(h))constituting inventory, rail cars and other equipment in the ordinary course of business, (H) sell, transfer and dispose to the Borrower or a Restricted Subsidiary;
(v) the Borrower and its Restricted Subsidiaries may dispose of other assets during the entire term of this Agreement with an aggregate book value that does not exceed five percent (5%) of the Borrower's consolidated current assets (excluding the current assets of Unrestricted Subsidiaries); provided that if the Borrower delivers a Reinvestment Notice with respect to an asset disposition, the five percent (5%) of consolidated current asset limitation of this clause shall not apply to the related asset disposition if the proceeds from such distribution are actually reinvested during the related Reinvestment Period; and
(vi) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and will not permit any of the its Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to Effective Date without the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination prior written consent of the BorrowerAdministrative Agent, is such consent not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement be unreasonably withheld or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddelayed.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower MK Holdings will not, and will not permit any Restricted Subsidiary to, merge into or amalgamate or consolidate with any other Person, or permit any other Person to merge into or amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in consummate a series of transactions) all of its assets, or all or substantially all of Division as the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired)Dividing Person, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person Subsidiary (other than a Borrower) may merge into or consolidate or amalgamate with MK Holdings in a transaction in which MK Holdings is the Borrower surviving entity (subject to providing such documents with respect to the surviving entity as may be reasonably required by the Administrative Agent);
(ii) any Subsidiary may merge into or consolidate or amalgamate with (subject to providing such documents as may be reasonably required by the Administrative Agent) the Company in a transaction in which the Borrower Company is the surviving corporation;
entity (ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging subject to providing such documents with a Restricted Subsidiary, the Loan Party shall be respect to the surviving entityentity as may be reasonably required by the Administrative Agent);
(iii) any Subsidiary (other than the Borrower Company) may merge into or consolidate or amalgamate with any Restricted other Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to (other than the Borrower or any Restricted Subsidiary; provided that if a transferor Company) in such a transaction in which the surviving entity is a Subsidiary (and if the surviving entity is a Loan Party, then subject to providing such documents with respect to the transferee must surviving entity as may be reasonably required by the Administrative Agent); provided that (x) in the case of a merger, consolidation or amalgamation of a Subsidiary that is not a Foreign Subsidiary Borrower into or with a Foreign Subsidiary Borrower in which the surviving entity is not the Foreign Subsidiary Borrower, the surviving Subsidiary shall be an Eligible Foreign Subsidiary and shall execute and deliver to the Administrative Agent a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and shall satisfy the other conditions precedent set forth in Section 4.03), and (y) in the case of a merger, consolidation or amalgamation of a Subsidiary that is not a Guarantor into or with a Guarantor, the surviving company shall be a Loan Party;Guarantor; and
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vother than a Borrower) any Restricted Subsidiary may liquidate or dissolve if the Borrower MK Holdings determines in good faith that such liquidation or dissolution is in the best interests of the Borrower MK Holdings and its Subsidiaries and is not materially disadvantageous to the Lenders;
(viv) the Borrower and the Restricted Subsidiaries MK Holdings or any Subsidiary may dispose of property and assets, including Equity Interests effect any Investment permitted by Section 6.04 by means of a Subsidiarymerger, either directly consolidation or through amalgamation of or with the Person that is the subject of such Investment with MK Holdings or any of its Subsidiaries (provided that, in the case of a merger or consolidationamalgamation with any Loan Party, the Loan Party is the survivor);
(vi) MK Holdings or any Subsidiary may effect the Transactions;
(vii) any Subsidiary (other than a Borrower) may change its legal form and any Domestic Subsidiary may be a party to a merger the sole purpose of which is to reincorporate or reorganize in another jurisdiction in the United States if, in any such case, MK Holdings reasonably determines in good faith that such action is in the best interests of MK Holdings and its Subsidiaries and is not materially disadvantageous to the extent permitted by clause Lenders (c) of this Sectionit being understood that a Subsidiary that is a Loan Party will remain a Loan Party); and
(viiviii) so long as no Default exists or would result therefrom, a any Subsidiary Guarantor may merge or consolidate with any other Person that is not an LLC may consummate a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be Division as the continuing or surviving entity or (ii) if Dividing Person if, immediately upon the Person formed by or surviving any such merger or consolidation (any such Personconsummation of the Division, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws assets of the United Statesapplicable Dividing Person are held by one or more Subsidiaries at such time, any state or commonwealth thereof, the District of Columbia with respect to assets not so held by one or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted formore Subsidiaries, such Subsidiary Guarantor under Division, in the aggregate, would otherwise result in Disposition permitted by this AgreementSection 6.03.
(b) The Borrower MK Holdings will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, engage to any material extent Dispose of (in any business other than businesses one or in a series of transactions) all or substantially all of the type conducted by the Borrower assets of MK Holdings and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale/Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the or consolidate with thea Borrower or Parent in a transaction in which the thesuch Borrower or Parent, as applicable, is the surviving corporation;
(ii) any Restricted Subsidiary Person (other than Parent and theeach Borrower) may merge into (i) or consolidate with any Restricted Subsidiary in a transaction in which the Borrower or (ii) one or more surviving entity is such Restricted Subsidiaries Subsidiary (provided that when any such merger, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in the surviving entityentity becoming a Subsidiary Guarantor);
(iii) the Borrower or any Restricted Subsidiary (other than thea Borrower) may sell, transfer, lease merge into or otherwise dispose of all or substantially all of its assets to the Borrower or consolidate with any Restricted Subsidiary; provided that if a transferor Person in such a transaction permitted under clauses (xiv), (xv) and (xvii) hereunder in which the surviving entity is not a Loan Party, then the transferee must be a Loan PartySubsidiary;
(iv) the Borrower any Restricted Subsidiary (other than thea Borrower) may Dispose of any or all of its assets (upon voluntary liquidation, dissolution or otherwise) to Parent or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))other Loan Party;
(v) any Restricted Subsidiary (other than thea Borrower) may liquidate or dissolve if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other Dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other Disposition of intellectual property that is, in the reasonable judgment of Parent, no longer economically practicable to maintain or useful in the conduct of the business of Parent and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions to Parent or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Disposition made by a Loan Documents Party to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.067.04 and (ii) Equity Interests of a Loan Party may not be transferred to a Subsidiary that is not a Loan Party;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(ivviii) the disposition discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(hreceivables);
(vix) salesleases, transfers subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of Parent and other the Restricted Subsidiaries taken as a whole;
(x) Liens permitted by Section 7.02;
(xi) Investments permitted by Section 7.04;
(xii) subject to Section 2.09(c)(iii), dispositions of Investments property as a result of a Casualty Event involving such property or any disposition of real property to a Governmental Authority as a result of a Condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures ventures, to the extent required by, or made pursuant to, customary to buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vixv) sales or other Dispositions of non-core assets acquired in the Azur Merger, the Acquisition, any Permitted Acquisition or other Investment; provided that such sales shall be consummated within two years of such acquisition or Investment; and provided, further, that (i) the lapse or abandonment of intellectual property rights consideration received for such assets shall be in an amount at least equal to the ordinary course of business which, fair market value thereof (determined in the reasonable good faith determination by the Board of Directors of Parent) and (ii) either (A) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash, or (B) thea Borrower, substantially concurrently with the receipt of any non-cash consideration (and in any event within one Business Day), prepays (or cause to be prepaid) the Loans in an amount equal to the amount by which the fair market value of the Borrowernon-cash consideration exceeds 25% of such consideration, is not material such prepayment to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a wholebe made in accordance with Section 2.09(c)(iii);
(viixvi) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedingsany Immaterial Asset Sale;
(viiixvii) Dispositions of assets that are not permitted by any surrender other clause of this Section 7.03; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xvii) shall not at the time of and immediately after giving effect to any such transaction exceed $100,000,000200,000,000 in any fiscal year; and provided, further, that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash;
(xviii) the surrender, waiver or settlement of contract contractual rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind and litigation claims in the ordinary course of business;
(ixxix) dispositions Dispositions of leasehold improvements or leased assets Equity Interests in any Subsidiary acquired in connection with any a Permitted Acquisition prior to the termination time of such Subsidiary becoming a Wholly Owned Subsidiary, in each case pursuant to any operating leasestock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such person becoming a Subsidiary;
(xxx) the unwinding or termination of any Swap AgreementsPermitted Reorganization; and
(xixxi) in addition to the dispositions Dispositions of assets that are not permitted by the any other clauses clause of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries7.03; provided that all salesthe applicable Borrower shall substantially concurrently (and in any event within one Business Day) apply 100% of the Net Cash Proceeds thereof to prepay (or cause to be prepaid) the Loans in accordance with Section 2.09(c)(iii) (it being understood that such Net Cash Proceeds shall not constitute Reinvestment Funds); and provided, transfersfurther, leases that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other dispositions of property made pursuant to this clause (xithan Indebtedness) shall be made for fair value and, if the sale, transfer, lease or disposition paid in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodcash.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assets, (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
that (1) subject to the satisfaction of the conditions set forth in Section 4.04 and the occurrence of the Acquisition Date, the IP Cleaning Acquisition shall be permitted and (2) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving corporation;
, (ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (another Subsidiary; provided that when a Restricted Subsidiary that is in the case of any merger involving a Loan Party is merging with such merger must result in a Restricted Subsidiary, the Loan Party shall be as the surviving entity (and any such merger involving the Company must result in the Company as the surviving entity);
, (iii) the Borrower or any Restricted Loan Party and any Subsidiary may sell, transfer, lease or otherwise dispose of all its assets to another Loan Party and any Subsidiary that is not a Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower or any Restricted other Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transferbe dissolved, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities provided that (subject A) such Subsidiary is not a Material Subsidiary, (B) the assets of such dissolved Subsidiary are transferred to a Loan Party or another Subsidiary, and (C) if a Subsidiary becomes a Material Subsidiary as a result of such transfer of assets, it will comply with the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under requirements of Section 6.01(h));
5.09, (v) any Restricted Loan Party and any Subsidiary may dispose of delinquent notes or accounts receivable in the ordinary course of business for purposes of collection and not for the purpose of any bulk sale or securitization transaction, (vi) any Loan Party may make charitable donations in the ordinary course of business in accordance with past practice, (vii) the Company and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) dispose of assets in connection with the leasing, subleasing or licensing of real or personal property (including intellectual property) in the ordinary course of business, (D) enter into Sale and Leaseback Transactions permitted by Section 6.09, (E) sell, transfer, lease or otherwise dispose of its assets in connection with any Liens permitted under Section 6.02 or with any investments permitted under Section 6.04, (F) sell, transfer, lease or otherwise dispose of its assets to any joint venture so long as such disposition is an investment permitted under Section 6.04, (G) abandon intellectual property that is, in the reasonable judgment of the Company, no longer economically practicable to maintain or useful in the conduct of the business of the Company and its Subsidiaries, taken as a whole, (H) dispose of interests in joint ventures as permitted under Section 6.04(f) and (I) make any other sales, transfers, leases or dispositions that, together with all other property of the Company and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (I) during any fiscal year of the Company, does not exceed 10% of Consolidated Total Assets (as reflected in the most recent consolidated balance sheet of the Company delivered pursuant to Section 5.01), and (viii) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a ; provided that any such merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, consolidation involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly-owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation (any such Person, the “Successor Company”) shall not be permitted unless it is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementalso permitted by Section 6.04.
(b) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Company and its Restricted Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto, including any environmental cleaning solutions business reasonably related, incidental or ancillary thereto line of business that owns or that is a reasonable extension thereofdevelops related technology.
(c) The Borrower Company will not, and will not permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any change the basis of its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Tennant Co)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) (A) any Person may merge into the Borrower in connection with a Permitted Acquisition or any other transaction permitted under this Agreement, in each case in which the Borrower is the surviving corporation and (B) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (iA) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity) and (B) any other Person in connection with an acquisition permitted hereunder, including any Permitted Acquisition, so long as the surviving entity is a Subsidiary (or immediately upon the consummation of the relevant transaction the Person into which such Subsidiary is merged becomes a Subsidiary);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell, lease and license inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, (D) make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (subject to D) during any fiscal year of the limitation that the Attributable Receivables Indebtedness thereunder shall Borrower, does not exceed an aggregate amount book value of ten percent (10%) of Consolidated Tangible Assets, and during the term of this Agreement does not exceed twenty five percent (25%) of Consolidated Tangible Assets as of the most recently ended fiscal quarter of the Borrower (determined by reference to the Borrower’s financial statements most recently delivered pursuant to Section 5.01(a) or 5.01(b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to such Sections, the most recent financial statements referred to in Section 3.04(a)), and (E) Sale and Leaseback Transactions permitted under Section 6.01(h))6.10;
(v) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) any Subsidiary that is a Loan Party may liquidate or dissolve if after giving effect to such liquidation such Subsidiary will not have any assets and the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Restricted Lenders;
(vii) the sale of delinquent notes or accounts receivable in the ordinary course of business for purposes of collection only (and not for the purpose of any bulk sale or securitization transaction);
(viii) the sale, transfer or other disposition of any tangible personal property that, in the reasonable business judgment of the Borrower or any Subsidiary, is no longer necessary for such Person’s operations or has become obsolete or worn out, and which is disposed of in the ordinary course of business;
(ix) without limitation to any other clause of this Section 6.03, the Borrower and its Subsidiaries may dispose sell or exchange specific items of property machinery or equipment, so long as the proceeds of each such sale or exchange is used (or contractually committed to be used) to acquire (and assets, including Equity Interests results within one hundred eighty (180) days of a Subsidiary, either directly such sale or through a merger or consolidation, to exchange in the extent permitted by clause (cacquisition of) replacement items of this Sectionmachinery and equipment; and
(viix) so long as leases or subleases granted by the Borrower or its Subsidiaries to third Persons not interfering in any material respect with the business of the Borrower or any of its Subsidiaries; provided, for the avoidance of doubt and notwithstanding anything to the contrary set forth in this Section 6.03, no Default exists material intellectual property of the Borrower or would result therefromany of its Subsidiaries may be sold, transferred, leased or otherwise disposed of to any Person except to: (x) a Loan Party, (y) a Pledge Subsidiary Guarantor may merge or consolidate with any other Person (z) a direct or indirect subsidiary of a Pledge Subsidiary that is not a Restricted Foreign Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person. Furthermore, the “Successor Company”) is Borrower will not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws reorganize in a jurisdiction outside of the United States, any state or commonwealth thereof, the District States of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementAmerica.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellconsummate a Division as the Dividing Person, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, (x) the Borrower or any Restricted Subsidiary may sell Receivables under (i) Permitted Receivables Facilities (subject to the limitation set forth in Section 6.01(c)) and (ii) A/R Purchase Programs; and (y) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Restricted Subsidiaries may (A) sell inventory in the ordinary course of business, (B) sell or lease storage or pipeline capacity in the ordinary course of business, (C) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (D) enter into licenses of technology in the ordinary course of business, and (E) in addition to clauses (A) through (D) above, make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions that, together with all other property of the Borrower and its Restricted Subsidiaries previously leased, sold or disposed of as permitted by this clause (subject to E) at any time after the limitation that the Attributable Receivables Indebtedness thereunder shall Effective Date, does not exceed an aggregate amount permitted under Section 6.01(h))$200,000,000;
(v) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) any Restricted Subsidiary that is not a Loan Party may merge into any Restricted Subsidiary (provided that any such merger involving a Restricted Subsidiary that is a Loan Party must result in such Loan Party being the surviving entity);
(vii) the Borrower and the Restricted Subsidiaries may dispose engage in any transactions constituting Restricted Payments to the extent permitted under Section 6.07 and Investments to the extent permitted under Section 6.04; and
(viii) any Subsidiary may (A) Dispose of property Investments in cash and assetsPermitted Investments in the ordinary course of business, including Equity Interests (B) effect Dispositions in connection with any theft, loss, physical destruction or damage, taking or similar event with respect to any of a Subsidiarytheir respective properties; and (C) effect the write-off of good will or other intangibles in the ordinary course of business. Upon the occurrence and during the continuance of an Event of Default, either directly or through a merger or consolidationthe Administrative Agent, at the request of the Required Lenders, shall by notice to the Borrower direct the Borrower to cause any Receivables Entity to exercise any voluntary option available to such Receivables Entity under the applicable Permitted Receivables Facility to terminate such Permitted Receivables Facility and the Borrower shall, upon receipt of such direction, cause such Receivables Entity to exercise such option and cause the Receivables Entity to, to the extent permitted by clause (c) required thereunder in connection with the exercise of this Section; and
(vii) so long as no Default exists such option, repurchase all purchase interests in any Receivables or would result therefromtake such other actions, a Subsidiary Guarantor may merge or consolidate in each case, in accordance with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor the terms of the Permitted Receivables Facility Document. The Administrative Agent shall be provide concurrent notice to the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing administrative agent under the laws applicable Permitted Receivables Facility of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have direction delivered to the Borrower pursuant to the foregoing sentence (provided that the Administrative Agent an officer’s certificate stating that shall not be liable to such merger administrative agent or consolidation and any securitization lender or purchaser for failure to provide such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementnotice).
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddate hereof.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Fundamental Changes and Asset Sales. (a) The Borrower No Loan Party or Subsidiary will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) any other Person, or permit any other Person to merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) it, or sell, transfer, lease or otherwise dispose (each, a “disposal” or “disposition”) of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries assets (in each case, whether now owned or hereafter acquired)) to any Person, or liquidate or dissolve. Notwithstanding the foregoing the following, except thatshall be permitted:
(i) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person may merge into merge, consolidate or amalgamate (or engage in a substantially similar transaction) with the Borrower in a transaction in which the Borrower is the surviving entity (provided that if the Borrower merges or consolidates with or into Parent, Parent is the surviving corporation;),
(ii) any Restricted Subsidiary may merge into merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any other Subsidiary in a transaction in which the surviving entity is a wholly-owned Subsidiary (in the case of a Loan Party, subject to preceding clause (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);),
(iii) assets or equity interests of any Subsidiary may be disposed of to any other wholly-owned Subsidiary or to the Parent or by the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted a wholly-owned Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;,
(iv) the Borrower Parent or any Subsidiary may transferdispose of assets or property to any other Person; provided, sell and/or pledge Permitted Receivables Related Assets that, the aggregate book or fair market value of all assets disposed (to a Person other than the Parent, the Borrower or any other wholly-owned Subsidiary) under Permitted Receivables Facilities this clause (subject to the limitation that the Attributable Receivables Indebtedness thereunder iv) during any fiscal year of Parent shall not exceed an aggregate amount permitted under Section 6.01(h));15% of the total consolidated assets of the Parent and its consolidated Subsidiaries, determined in accordance with GAAP, measured as of the last day of the immediately preceding fiscal year for which financial statements have been or were required to be delivered pursuant to this Agreement,
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted its Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments inventory in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;,
(vi) Parent and its Subsidiaries may transfer assets in connection with a Financing Arrangement permitted under Section 6.03,
(vii) the lapse Parent or abandonment any Subsidiary may lease, as lessor or sublessor, or license, as licensor or sub licensor, real or personal property (other than any intellectual property) in the ordinary course of business, provided that no such lease or license shall materially interfere with the ordinary course of business of the Parent or any Subsidiary,
(viii) the Parent or any Subsidiary may liquidate or sell Cash Equivalents,
(ix) the Parent or any Subsidiary may, in the ordinary course of business, licence or sublicense intellectual property rights owned or held by the Parent or such Subsidiary so long as each such license is non exclusive and in the ordinary course of business,
(x) the Parent or any Subsidiary may dispose of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business which, and may dispose of property no longer used or useful in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement Parent or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; andSubsidiary,
(xi) the Parent or any Subsidiary may sell Receivable Assets to a Securitization Entity in addition a Qualified Securitization Transaction for the fair market value thereof; provided that at no time shall more than US$1,000,000,000 (or its equivalent in another currency or currencies) in fair market value of assets be subject to such Qualified Securitization Transaction,
(xii) any Subsidiary may pay dividends or make any other distribution,
(xiii) the Parent may pay cash dividends (or dividends paid in the form of common equity of the Parent) to its shareholders, to the dispositions permitted by extent lawful, and
(xiv) any Subsidiary may liquidate or dissolve (with any residual assets being applied in accordance with one of the other clauses of this Section 6.03(c6.01), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Teva Pharmaceutical Industries LTD)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all any of its assets, or all or substantially all of material assets (including the Equity Interests of any of its Restricted Subsidiaries subsidiaries) (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that the Borrower may, and may permit any Subsidiary to, engage in the transactions set forth in clauses (a)(i) through (a)(xvi) of this Section 6.03, subject, in all cases, to compliance with Section 5.11(c), and provided, however, that, with respect to clauses (a)(vi)(E), (a)(vii) and (a)(xiii) below, the Borrower and its Subsidiaries may engage in the transactions specified in such clauses only if at the time thereof and immediately after giving effect thereto no Specified Event of Default shall have occurred and be continuing or would result immediately therefrom:
(i) any Person Subsidiary that is not a Loan Party may merge into the Borrower or another Subsidiary that is a Loan Party in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted such Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(ii) any Subsidiary that is not a Loan Party may merge into another Subsidiary that is not a Loan Party;
(iii) any Subsidiary that is a Loan Party may merge into the Borrower or another Subsidiary that is a Loan Party;
(iv) any Restricted Subsidiary that is a Loan Party may sell, transfer, lease or otherwise dispose of all its assets to the Borrower or substantially all to another Subsidiary that is a Loan Party;
(v) any Subsidiary that is not a Loan Party may Dispose of its assets to the Borrower or any Restricted to another Subsidiary; provided provided, however, that a Broker-Dealer Subsidiary may only Dispose of assets pursuant to or in reliance upon this clause (a)(v) if a transferor in such a transaction Disposition is to a Loan Party, then the transferee must be a Loan PartyParty or to another Broker-Dealer Subsidiary;
(ivvi) the Borrower and the Subsidiaries may (A) sell inventory and equipment in the ordinary course of business, (B) Dispose of worn-out, obsolete or damaged assets in the ordinary course of business, (C) grant licenses or sublicenses of intellectual property or allow to lapse or abandon any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject registrations or applications for registration of any intellectual property in the ordinary course of business which is not material to the limitation that business of the Attributable Receivables Indebtedness thereunder shall not exceed Borrower or such Subsidiary, (D) make the disposition previously identified to the Administrative Agent in writing, and (E) make any other sales, transfers, leases or other dispositions of assets with an aggregate amount permitted under Section 6.01(h))value (as reasonably determined by the Borrower in good faith) not to exceed the greater of (i) $35,000,000 and (ii) 10% of Consolidated Net Tangible Assets (measured as of the date of Disposition) in any fiscal year;
(vvii) any Restricted Subsidiary (other than MarketAxess Corporation) that is not a Guarantor, and any Immaterial Subsidiary, may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(viviii) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent any Investment permitted by clause (c) of this Section; and
(vii) so long Section 6.04 may be structured as no Default exists a merger, consolidation or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiaryamalgamation; provided that (i) in the case of any such Subsidiary Guarantor shall be merger, consolidation or amalgamation of a Loan Party, the surviving, continuing or resulting legal entity of such merger, consolidation or amalgamation is a Loan Party (or simultaneously with such transaction, the continuing, surviving or resulting entity or (iishall become a Subsidiary Guarantor) if and the Person formed by or surviving Borrower shall comply with Section 5.10 in connection therewith, and provided further that in the case of any such merger merger, consolidation or consolidation (any such Personamalgamation of a Broker-Dealer Subsidiary, the “Successor Company”) is not such Subsidiary Guarantorsurviving, (A) the Successor Company shall be an continuing or resulting legal entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other merger, consolidation or amalgamation shall either be a Loan Documents to which the Subsidiary Guarantor is Party or a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of businessBroker-Dealer Subsidiary;
(iiix) as long as no Default exists the Disposition of cash or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06Cash Equivalent Investments;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(ivx) the disposition Disposition of surplus or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments property no longer used or useful in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions Dispositions consisting of Liens permitted by the other clauses of this Section 6.03(c)6.02, leases, sales Investments permitted by Section 6.04 or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.Payments permitted by Section 6.06;
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person Restricted Subsidiary may merge into or consolidate with the Borrower or any other Restricted Subsidiary; provided that (A) if the Borrower is a party in a transaction in which such transaction, the Borrower is the surviving corporation; and (B) if any Subsidiary Guarantor is a party in such transaction and the Borrower is not, the surviving entity shall be or become a Subsidiary Guarantor;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is not a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (A) to the Borrower or any other Restricted Subsidiary; provided that if a transferor Subsidiary or (B) in such a any transaction is permitted pursuant to Section 6.04;
(iii) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets (A) to a Loan Party, then the transferee must be a Loan PartyParty or (B) in any transaction permitted pursuant to Section 6.04;
(iv) the Borrower or any Restricted Subsidiary may transfermerge into or consolidate with another Person in order to consummate a transaction what is otherwise permitted pursuant to Section 6.04; provided that (A) if the Borrower is a party in such transaction, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities the Borrower is the surviving corporation; and (subject to B) if any Subsidiary Guarantor is a party in such transaction and the limitation that Borrower is not, the Attributable Receivables Indebtedness thereunder surviving entity shall not exceed an aggregate amount permitted under Section 6.01(h))be or become a Subsidiary Guarantor;
(v) the Borrower and its Restricted Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business, (C) enter into licenses or sublicenses of technology or other intellectual property in the ordinary course of business, (D) enter into leases in the ordinary course of business, and (E) make any other sales, transfers, leases or dispositions (and any merger or consolidation with another Person in order to consummate such sale, transfer, lease or disposition) that, together with all other property of the Borrower and its Restricted Subsidiaries previously leased, sold or disposed of as permitted by this clause (E) during any fiscal year of the Borrower, does not exceed the greater of (x) $35,000,000 and (y) an amount equal to 15% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the most recent financial statements referred to in Section 3.04), as applicable;
(vi) the use or transfer of cash or cash equivalents in a manner that is not prohibited by the terms of the Agreement;
(vii) sales, transfers or dispositions of accounts in the ordinary course of business for purposes of collection or settlement of disputed claims;
(viii) sales, transfers or dispositions of assets resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of; and
(ix) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may ; provided that, if any such dissolved or liquidated Subsidiary is a Loan Party, such Subsidiary shall sell, transfer or otherwise dispose of property and assets, including Equity Interests of a Subsidiary, either directly its assets to another Loan Party prior to or through a concurrently with such dissolution or liquidation; provided that any such merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, consolidation involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a wholly-owned Restricted SubsidiarySubsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04; provided further that (i) such when any Restricted Subsidiary Guarantor shall be is merging or consolidating with or into an Unrestricted Subsidiary and the Restricted Subsidiary is not the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary GuarantorBorrower shall have complied with the requirements of Section 5.10. During the Modification Period, sales, transfer, assignments or dispositions made by Loan Parties to non-Loan Parties pursuant to Section 6.03(a)(ii), (Aiii) the Successor Company or (v)(A) shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto consummated in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementcash for fair market value.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably relatedrelated thereto, incidental reasonable extensions thereof or ancillary thereto or that is a reasonable extension thereofcomplimentary thereto.
(c) The Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sellchange its fiscal year from the basis in effect on the Effective Date, transfer, lease or otherwise dispose in each case other than to match the fiscal year of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property Restricted Subsidiary to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination fiscal year of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assets, rights or all property (including Intellectual Property) (including pursuant to a Sale and Leaseback Transaction), or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) (A) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower surviving entity is such Loan Party or (ii) one or more Restricted Subsidiaries in which such surviving entity becomes a Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity), and (B) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party;
(iii) the Borrower or (A) any Restricted Subsidiary Loan Party may sell, transfer, lease or otherwise dispose of all its assets to any other Loan Party and (B) any Subsidiary that is not a Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower any Loan Party or any Restricted Subsidiary; provided another Subsidiary that if a transferor in such a transaction is not a Loan PartyParty and (C) any Loan Party may sell, then the transferee must be transfer, lease or otherwise dispose of its assets to a Subsidiary that is not a Loan PartyParty in the ordinary course of business and at fair market value (as reasonably determined by the Borrower) or in an aggregate amount not to exceed $80,000,000 in any fiscal year of the Borrower;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) (1) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business and (2) dispose of obsolete or worn out property, including involuntary loss, damage or destruction of property, (C) enter into licenses of Intellectual Property in the ordinary course of business (including, intercompany licensing of Intellectual Property between the Borrower and any Subsidiary may transferand between Subsidiaries in connection with cost-sharing arrangements, distribution, marketing, make-sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities or other similar arrangements) and (subject to D) make any other sales, transfers, leases or dispositions that, together with all other property of the limitation that Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) (1) does not exceed $150,000,000 during any fiscal year of the Attributable Receivables Indebtedness thereunder shall Borrower and (2) does not exceed an aggregate amount permitted under Section 6.01(h))of $450,000,000 from and after the Effective Date;
(vA) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersLenders and (B) any Subsidiary that is a Loan Party may liquidate or dissolve to facilitate internal reorganizations;
(vi) the Borrower and the Restricted its Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andconsummate Permitted Acquisitions;
(vii) so long as no Default exists the Borrower and its Subsidiaries may consummate Sale and Leaseback Transactions that are otherwise permitted by Section 6.01(e) and Section 6.02(d);
(viii) the sale or would result therefromdiscount, a Subsidiary Guarantor may merge or consolidate with any in each case without recourse, of account receivables, including similar transactions (other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor than Qualified Factoring Transactions), in each case arising in the ordinary course of business shall be permitted but only in connection with the continuing compromise or surviving entity collection thereof (including through factoring and similar transactions);
(ix) to the extent constituting a transfer or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantordisposition, (A) the Successor Company shall be an entity organized or existing under the laws making of the United States, any state or commonwealth thereof, the District of Columbia Investment permitted pursuant to Section 6.04 or any territory thereof, Restricted Payment permitted pursuant to Section 6.07 and (B) the Successor Company creation, incurrence or assumption of any Lien permitted under Section 6.02 shall expressly assume all be permitted;
(x) the obligations use, transfer or disposition of such cash or Permitted Investments in a manner that is not prohibited by the terms of this Agreement shall be permitted;
(xi) the Borrower and its applicable Subsidiaries may transfer to any Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party any property acquired pursuant to a supplement hereto Permitted Acquisition to facilitate internal reorganizations;
(xii) the abandonment or thereto other disposition of immaterial Intellectual Property or rights therein (including allowing any registrations or applications for registrations of any Intellectual Property or rights therein to lapse or go abandoned) shall be permitted;
(xiii) the surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in form reasonably satisfactory the ordinary course of business shall be permitted;
(xiv) the unwinding, settlement or termination of any Swap Agreement permitted under Section 6.05 shall be permitted;
(xv) with respect to Intellectual Property acquired pursuant to the Administrative AgentMicrosemi Acquisition, any sales, transfers, licenses or other dispositions by any Loan Party to the Borrower or its Subsidiaries of rights in respect of such Intellectual Property outside of North America and South America shall be permitted, provided that such sales, transfers, licenses and dispositions are made to facilitate (1) internal corporate reorganizations, (2) tax structuring strategies, and/or (3) Intellectual Property protection or exploitation strategies and, in each case, not in connection with the incurrence by the Borrower or any Subsidiary of Indebtedness and, to the extent determined by the Borrower in its business judgment, with preference given to structures where the legal title of such Intellectual Property remains with a Loan Party;
(xvi) sales, transfers or other dispositions of assets acquired pursuant to a Permitted Acquisition that in the judgment of the Borrower’s management are not necessary or desirable to carry out the Borrower’s business plans shall be permitted, to the extent binding agreements or letters of intent providing for such sales, transfers or other dispositions are entered into within 12 months after the acquisition of such assets;
(xvii) [reserved]; and
(xviii) the sale, conveyance, assignment or other transfer of Securitization Assets to any Person in a Qualified Factoring Transaction; provided that so long as after giving effect thereto the aggregate outstanding face amount of accounts receivable, royalty or other revenue streams, other rights to payment, that have been sold, conveyed, assigned or otherwise transferred (or purported to be sold, conveyed, assigned or otherwise transferred) by the Borrower or any Subsidiary, and (C) such Subsidiary Guarantor shall have delivered not collected or determined by the Borrower to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; providedbe uncollectible, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementdoes not exceed $600,000,000 at any time outstanding.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year for GAAP purposes from the basis in effect on the Effective Date; provided, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance acquired after the Effective Date may change its fiscal year for GAAP purposes to correspond with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period’s fiscal year.
Appears in 1 contract
Samples: 364 Day Senior Secured Bridge Credit Agreement (Microchip Technology Inc)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.value
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Irish Holdco, the Irish Sub Holdco, the Lux Holdco and each Borrower will not, and will not permit any Restricted Subsidiary to, merge into into, amalgamate with or consolidate with any other Person, or permit any other Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate liquidate, dissolve or dissolvewind-up, except that:
(i) any Person (other than the Lux Holdco, any Borrower, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the Target) may merge into into, amalgamate with or consolidate with the Borrower Irish Holdco in a transaction in which the Borrower Irish Holdco is the surviving corporation;
(ii) (x) any Person (other than Irish Holdco, any Borrower, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the Target) may merge into, amalgamate with or consolidate with any Restricted Subsidiary may merge into (i) of the Lux Borrower or (ii) one or more in a transaction in which the surviving entity is such Restricted Subsidiaries Subsidiary (provided that when any such merger, amalgamation, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in such Subsidiary Guarantor as the surviving entity)) and (y) the 2013 Senior Notes Issuer, any Permitted Co-Borrower or any New Notes Issuer may merge into, amalgamate with or consolidate with any other such Person in a transaction in which the surviving entity is any such Person;
(iii) the Borrower or any Restricted Subsidiary (other than any Borrower, any direct or indirect holding company thereof, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the Target) may sellmerge into, transfer, lease amalgamate with or otherwise dispose of all or substantially all of its assets to the Borrower or consolidate with any Restricted Subsidiary; provided that if a transferor Person in such a transaction permitted under clauses (xiv), (xv) and (xix) hereunder in which the surviving entity is not a Loan Party, then the transferee must be a Loan PartySubsidiary;
(iv) any Restricted Subsidiary (other than any Borrower, any direct or indirect holding company thereof, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the Target) may dispose of any or all of its assets (upon voluntary liquidation, dissolution, winding-up otherwise) to the Lux Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation of its Restricted Subsidiaries; provided that the Attributable Receivables Indebtedness thereunder foregoing shall not exceed an aggregate amount permitted under Section 6.01(h))permit the voluntary liquidation, dissolution or winding-up of any Borrower or the direct holding company of any Borrower;
(v) any Restricted Subsidiary (other than Lux Holdco, any Borrower, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the Target) may liquidate liquidate, dissolve or dissolve wind-up if the Borrower Irish Holdco determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Irish Holdco and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Irish Holdco, no longer economically practicable to maintain or useful in the conduct of the business of the Irish Holdco and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions (or would result therefrom, a Subsidiary Guarantor may merge any license or consolidate with sublicense of intellectual property) to the Irish Holdco or any other Person that is not a Restricted Subsidiary; provided that any such Disposition (ior any license or sublicense of intellectual property) such made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 6.04;
(ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (Aviii) the Successor Company discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(ix) leases, subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of the Irish Holdco and the Restricted Subsidiaries taken as a whole;
(x) Liens incurred in compliance with Section 6.02;
(xi) Investments permitted by Section 6.04;
(xii) subject to Section 2.11(c)(1), dispositions of property as a result of a casualty event involving such property or any disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that the consideration received shall be in an entity organized or existing under amount at least equal to the laws fair market value thereof (determined in good faith by the board of directors of the United States, any state Irish Holdco);
(xv) sales or commonwealth thereof, the District other Dispositions of Columbia or any territory thereof, (B) the Successor Company non-core assets acquired in a Permitted Acquisition; provided that such sales shall expressly assume all the obligations be consummated within 360 days of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this AgreementPermitted Acquisition; provided, further, that if (i) the foregoing are satisfiedconsideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Irish Holdco) and (ii) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (ii), the Successor Company will succeed toIrish Holdco shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of the Irish Holdco and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed $10,000,000 for each such Disposition);
(xvi) any Immaterial Asset Sale;
(xvii) any lease or sublease by Endo of a portion of its interest in its headquarters located in Malvern, Pennsylvania;
(xviii) the Irish Holdco or any Restricted Subsidiary may transfer, sell and/or pledge Receivables and Permitted Receivables Facility Assets under Permitted Receivables Facilities;
(xix) Dispositions of assets that are not permitted by any other clause of this Section 6.03; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xix) shall not at the time of and immediately after giving effect to any such transaction exceed in any fiscal year 15% of Consolidated Total Assets at the end of the immediately preceding fiscal year of the Irish Holdco;
(xx) the Transactions (including, without limitation, the Acquisition, the Merger, and each other transaction set forth in the Structure Paper) may be substituted forconsummated; and
(xxi) Dispositions of assets (but not Equity Interests in any Restricted Subsidiary unless such Restricted Subsidiary is not a Borrower (or a direct or indirect holding company thereof)) that are not permitted by any other clause of this Section 6.03; provided that (x) the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xxi) shall not at the time of and immediately after giving effect to any such Subsidiary Guarantor under transaction exceed in the aggregate for all Dispositions effected pursuant to this Agreementclause (xxi) (including the Disposition being made) 30% of Consolidated Total Assets at the end of the immediately preceding fiscal year of the Irish Holdco, (y) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Irish Holdco) and (z) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (z), the Irish Holdco shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of the Irish Holdco and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed, in the aggregate for all such Dispositions, the greater of (1) $100,000,000 and (2) 1.5% of Consolidated Total Assets as of the end of the most recent fiscal quarter of the Irish Holdco for which Financials have been delivered (or, prior to the first delivery of any such financial statements, as set forth in the pro forma consolidated financial statements delivered pursuant to Section 4.01(q)(iii)).
(b) The Irish Holdco, the Irish Sub Holdco, the Lux Holdco and each Borrower will not, and will not permit any of its their respective Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Irish Holdco and its Restricted Subsidiaries on the date of execution of Closing Date (for this Agreement purpose, determined as if the Transactions had been effected prior to such date) and any business businesses reasonably related, incidental or ancillary related thereto or that is a similar or complementary thereto or reasonable extension thereofextensions thereof (including, but not limited to the business of diagnostics, medical devices, delivery technologies and biotechnology).
(c) The Borrower will not, and Irish Holdco will not permit any of change its fiscal year from the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property basis applicable to Endo prior to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodClosing Date.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into into, consolidate with, or consolidate with otherwise be acquired by, any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose (including pursuant to a Sale and Leaseback Transaction) of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter here-after acquired, and for purposes hereof, any capital stock issued by the Parent which is held by the Parent as treasury stock shall not be deemed to be property or an asset of the Parent and shall not be subject to this Section 6.03), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person Subsidiary may merge into the Borrower a Loan Party in a transaction in which the surviving entity is or becomes a Loan Party (provided that (x) subject to the following clause (y), any such merger involving the Assuming Borrower is must result in the Assuming Borrower as the surviving corporation;
entity and (y) Parent must result in the Parent as the surviving entity), (ii) any Restricted wholly-owned Subsidiary may merge into (i) or consolidate with any wholly-owned Subsidiary in a transaction in which the Borrower surviving entity is a wholly-owned Subsidiary and no Person other than the Parent or a wholly-owned Subsidiary receives any consideration, provided that if any such merger described in this clause (ii) one shall involve (x) subject to the following clause (y), a Loan Party, the surviving entity of such merger shall be or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is shall become a Loan Party is merging with a Restricted Subsidiary, and (y) the Loan Party shall be Assuming Borrower must result in the Assuming Borrower as the surviving entity);
, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower a Loan Party or any Restricted Subsidiary; provided that if a transferor in such wholly-owned Subsidiary pursuant to a transaction is a Loan Partynot otherwise prohibited under this Agreement, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to other than the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vAssuming Borrower) any Restricted Subsidiary may liquidate or dissolve if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and Parent, (v) the Parent may merge with any other Person so long as the Parent is not materially disadvantageous to the Lenders;
surviving entity, (vi) any Subsidiary (other than the Assuming Borrower) may merge with any other Person so long as the surviving entity is, in the case of a Subsidiary Guarantor, the Subsidiary Guarantor, and in all other cases, a wholly-owned Subsidiary, (vii) any Subsidiary other than the Assuming Borrower and the Restricted Subsidiaries or a Subsidiary Guarantor may merge into, Parent or any Subsidiary may dispose of property all or substantially all of the stock of any of its Subsidiaries other than the Assuming Borrower or a Material Subsidiary to, and assetsParent or any Subsidiary may dispose of assets to, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) any other Person so long as no Default exists Parent delivers a certificate to the Administrative Agent demonstrating pro forma compliance with Section 6.05 after giving effect to such transaction and (viii) the Parent may transfer the stock (or other equity interests) of any Subsidiary held by the Parent to any wholly-owned Subsidiary; provided that any such transfer of the stock (or other equity interests) of any Domestic Subsidiary that is, or that would result therefromotherwise be required to be, a Subsidiary Guarantor may merge or consolidate with any other Person that is not only be made to a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Parent and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower Parent will not, and will not permit any of the Restricted its Subsidiaries to, sell, transfer, lease change its fiscal year to end on a day other than as such fiscal year end is currently determined or otherwise dispose change the Parent’s method of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddetermining fiscal quarters.
Appears in 1 contract
Samples: Loan Agreement (NetApp, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower No Loan Party will, or will not, and will not permit any Restricted Subsidiary to, merge into into, or amalgamate or consolidate with any other Person, or permit any other Person to merge into into, or amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted the Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation; provided that any such merger arising in connection with an Acquisition shall not be permitted unless also permitted by Section 6.04;
(ii) (a) any Restricted Subsidiary may merge into or amalgamate with a Loan Party in a transaction in which the surviving entity or successor entity is a Loan Party; provided, however, that (i1) any such merger involving the Borrower or must result in the Borrower as the survivor thereof, and (ii2) one or more Restricted Subsidiaries if arising in connection with an Acquisition, shall not be permitted unless also permitted by Section 6.04, and (provided that when a Restricted b) any non-Loan Party Subsidiary that is a Restricted Subsidiary may merge into or amalgamate with another non-Loan Party Subsidiary that is merging with a Restricted Subsidiary; provided, the Loan Party that, if arising in connection with an Acquisition, shall not be the surviving entity)permitted unless also permitted by Section 6.04;
(iii) any of the Borrower following sales, transfers, leases or other disposition may occur:
(A) any Restricted Subsidiary that is not a Loan Party may sell, transfer, lease or otherwise dispose of all its assets to a Loan Party;
(B) any Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower or any other Loan Party;
(C) IEDB Transfers;
(D) any Restricted Subsidiary; provided Subsidiary that if is not a transferor in such Loan Party may sell, transfer, lease or otherwise dispose of its assets to any other Restricted Subsidiary that is not a transaction Loan Party;
(E) any Loan Party may sell, transfer, lease or otherwise dispose of its assets to any Restricted Subsidiary that is not a Loan Party, then and any Loan Party or Restricted Subsidiary may sell, transfer lease or otherwise dispose of its assets to any Unrestricted Subsidiary, any Affiliate of any Loan Party or Restricted Subsidiary, or any Person in which a Loan Party or other Restricted Subsidiary owns no more than 50% of the transferee must be voting Equity Interests thereof, so long as the aggregate net book value of all such assets, when taken together with all other Restricted Intercompany Transactions, does not exceed the Restricted Intercompany Transactions Amount; and
(F) any Loan Party may sell, transfer, lease or otherwise dispose of Historical Used Equipment to any Restricted Subsidiary that is not a Loan Party, and any Loan Party or Restricted Subsidiary may sell, transfer lease or otherwise dispose of Historical Used Equipment to any Unrestricted Subsidiary, any Affiliate of any Loan Party or Restricted Subsidiary, or any Person in which a Loan Party or other Restricted Subsidiary owns no more than 50% of the voting Equity Interests thereof; provided, that the aggregate net book value of all sales, transfers, leases and dispositions made in reliance on this clause (F) (excluding any dispositions made in reliance on this clause (F) prior to the Amendment No. 2 Effective Date) shall not exceed (i) the U.S. Dollar Amount of U.S. $125,000,000 at any time the Total Leverage Ratio is less than 3.00 to 1.00 (both before and after giving effect thereto on a Pro Forma Basis), and (ii) the U.S. Dollar Amount of U.S. $50,000,000 at any time the Total Leverage Ratio is equal to or greater than 3.00 to 1.00 (both before and after giving effect thereto on a Pro Forma Basis); Table of Contents provided, further, that if a sale, transfer, lease or disposition was permitted because the Total Leverage Ratio was less than 3.00 to 1.00 (both before and after giving effect thereto on a Pro Forma Basis), but subsequent thereto, the Total Leverage Ratio equals or exceeds 3.00 to 1.00, such sale, transfer, lease or disposition shall remain a permitted transaction under this clause (F), but no further sales, transfers, leases or dispositions shall be permitted hereunder until such time as the Total Leverage Ratio is less than 3.00 to 1.00 and the Loan Parties have not otherwise reached the above-mentioned U.S. $125,000,000 limitation;
(iv) the Borrower or any Restricted Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the on Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h6.01(n))) at any time;
(v) the Loan Parties and the Restricted Subsidiaries may:
(A) sell inventory in the ordinary course of business;
(B) effect sales, trade-ins or dispositions of used, obsolete, scrap, worn out or surplus equipment or property for value if such equipment is located at Plants Designated for Closure or Sale or otherwise in the ordinary course of business consistent with past practice;
(C) enter into licenses of technology in the ordinary course of business;
(D) sell, transfer, assign, lease or otherwise dispose of owned, or sublease, assign or earlier terminate leases or subleases in connection with leaseholds or subleaseholds for, Plants Designated for Closure or Sale; provided, that the aggregate net book value for all Plants Designated for Closure or Sale that are sold, transferred, assigned, disposed of, leased, subleased or early terminated shall not exceed the U.S. Dollar Amount of U.S. $100,000,000;
(E) [Reserved]
(F) make any other sales, transfers, leases or dispositions (including Sale and Leaseback Transactions that comply with Section 6.10) that, together with all other property of the Loan Parties and the Restricted Subsidiaries previously leased, sold or disposed of as permitted by this clause (F) during the term of this Agreement, and as determined based on net book value for all property subject to such sales, transfers, leases or other dispositions, does not exceed 35% of Consolidated Total Assets, and with such sales, transfers, leases and dispositions in any Fiscal Year not exceeding 15% of Consolidated Total Assets (the “Annual Asset Sale Limitation”); provided, that (i) Consolidated Total Assets shall be computed based upon the most recently audited financials provided by the Borrower to the Administrative Agent under Section 5.01(a), and (ii) computations of the Borrower’s compliance with this clause (F) shall be made after giving effect to the Asset Sale and Purchase Offset, with the transactions permitted to be credited toward the Asset Sale and Purchase Offset not counting toward the limitations set forth in this clause (F); provided, further, all sales, transfers, leases and other dispositions permitted under this Section 6.03(a)(v) shall be for fair market value and, other than with respect to clauses (v)(B), (v)(C) (with respect to cross-licensing of technology where the consideration for the issuance of a license is (1) the receipt of a different license of comparable value, (2) the receipt of Equity Interests in a Person (or the enhancement of the value of existing Equity Interests in such Person) or (3) an interest in a joint development arrangement (or the enhancement of value under an existing joint development agreement), in which case no cash consideration is required), (v)(D) and (v)(E), at least 75% of the consideration paid therefor shall be in cash when the Total Leverage Ratio, on a Pro Forma Basis giving effect to the applicable transaction, is equal to or greater than 3.00 to 1.00;
(vi) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the its best interests of the Borrower and is not materially disadvantageous to the Lenders;
, and, if such Restricted Subsidiary is a Loan Party, such Loan Party’s assets and property (viincluding revenues) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, are transferred to the extent permitted by clause (c) of this Sectionanother Loan Party; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 Party or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Subsidiary may engage in Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodCorporate Restructuring Transactions.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, consummate a Division as the Dividing Person, or otherwise sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactionstransactions and whether effected pursuant to a Division or otherwise) all or substantially all of the assets of the Borrower and its assetsSubsidiaries (taken as a whole), (including pursuant to a Sale and Leaseback Transaction), or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person (including any Subsidiary that is not a Loan Party) may merge into the Borrower or a Subsidiary in a transaction in which the Borrower or such Subsidiary is the surviving corporationcorporation (provided that any such merger involving the Borrower must result in the Borrower as the surviving entity);
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iii) any Subsidiary that is an LLC may consummate a Division as the Borrower Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time (or, in the case of a Division of a Subsidiary that is a Loan Party, the assets of such applicable Dividing Person are held by a wholly-owned Subsidiary which is (or shall simultaneously become, pursuant to Section 5.09(a)) a Loan Party);
(iv) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted another Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));and
(v) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower No Loan Party or Subsidiary will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) any other Person, or permit any other Person to merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) it, or sell, transfer, lease or otherwise dispose (each, a “disposal” or “disposition”) of (in one transaction or in a series of transactions) all of its assetsany assets (whether now owned or hereafter acquired) to any Person, or liquidate or dissolve. Notwithstanding the foregoing the following, shall be permitted:
(i) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person may merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any Borrower in a transaction in which the applicable Borrower is the surviving entity (provided that if a Subsidiary Borrower merges or consolidates with or into Parent, Parent is the surviving corporation),
(ii) any Subsidiary may merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any other Subsidiary in a transaction in which the surviving entity is a wholly-owned Subsidiary (in the case of a Loan Party, subject to preceding clause (i)),
(iii) assets or equity interests of any Subsidiary may be disposed of to any other wholly-owned Subsidiary or to the Parent or by a Borrower to another Borrower or by a Borrower to a wholly-owned Subsidiary,
(iv) the Parent or any Subsidiary may dispose of assets or property to any other Person; provided, that, the aggregate book or fair market value of all assets disposed (to a Person other than the Parent, a Borrower or substantially all any other wholly-owned Subsidiary) under this clause (iv) during any fiscal year of Parent shall not exceed 15% of the Equity Interests total consolidated assets of the Parent and its consolidated Subsidiaries, determined in accordance with GAAP, measured as of the last day of the immediately preceding fiscal year for which financial statements have been or were required to be delivered pursuant to this Agreement,
(v) the Parent and its Subsidiaries may dispose of inventory in the ordinary course of business,
(vi) Parent and its Subsidiaries may transfer assets in connection with a Financing Arrangement permitted under Section 6.03,
(vii) the Parent or any Subsidiary may lease, as lessor or sublessor, or license, as licensor or sub licensor, real or personal property (other than any intellectual property) in the ordinary course of its Restricted Subsidiaries business, provided that no such lease or license shall materially interfere with the ordinary course of business of the Parent or any Subsidiary,
(viii) the Parent or any Subsidiary may liquidate or sell Cash Equivalents,
(ix) the Parent or any Subsidiary may, in the ordinary course of business, licence or sublicense intellectual property owned or held by the Parent or such Subsidiary so long as each casesuch license is non exclusive and in the ordinary course of business,
(x) the Parent or any Subsidiary may dispose of obsolete or worn out property, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, and may dispose of property no longer used or useful in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement Parent or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; andSubsidiary,
(xi) the Parent or any Subsidiary may sell Receivable Assets to a Securitization Entity in addition a Qualified Securitization Transaction for the fair market value thereof; provided that at no time shall more than US$1,000,000,000 (or its equivalent in another currency or currencies) in fair market value of assets be subject to such Qualified Securitization Transaction,
(xii) any Subsidiary may pay dividends or make any other distribution,
(xiii) the Parent may pay cash dividends (or dividends paid in the form of common equity of the Parent) to its shareholders, to the dispositions permitted by extent lawful, and
(xiv) any Subsidiary may liquidate or dissolve (with any residual assets being applied in accordance with one of the other clauses of this Section 6.03(c6.01), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Samples: Senior Unsecured Revolving Credit Agreement (Teva Pharmaceutical Industries LTD)
Fundamental Changes and Asset Sales. (a) The Borrower MK Holdings will not, and will not permit any Restricted Subsidiary to, merge into or amalgamate or consolidate with any other Person, or permit any other Person to merge into or amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person Subsidiary (other than a Borrower) may merge into or consolidate or amalgamate with MK Holdings in a transaction in which MK Holdings is the Borrower surviving entity (subject to providing such documents with respect to the surviving entity as may be reasonably required by the Administrative Agent);
(ii) any Subsidiary may merge into or consolidate or amalgamate with (subject to providing such documents as may be reasonably required by the Administrative Agent) the Company in a transaction in which the Borrower Company is the surviving corporation;
entity (ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging subject to providing such documents with a Restricted Subsidiary, the Loan Party shall be respect to the surviving entityentity as may be reasonably required by the Administrative Agent);
(iii) any Subsidiary (other than the Borrower Company) may merge into or consolidate or amalgamate with any Restricted other Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to (other than the Borrower or any Restricted Subsidiary; provided that if a transferor Company) in such a transaction in which the surviving entity is a Subsidiary (and if the surviving entity is a Loan Party, then subject to providing such documents with respect to the transferee must surviving entity as may be reasonably required by the Administrative Agent); provided that (x) in the case of a merger, consolidation or amalgamation of a Subsidiary that is not a Foreign Subsidiary Borrower into or with a Foreign Subsidiary Borrower in which the surviving entity is not the Foreign Subsidiary Borrower, the surviving Subsidiary shall be an Eligible Foreign Subsidiary and shall execute and deliver to the Administrative Agent a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and shall satisfy the other conditions precedent set forth in Section 4.03), and (y) in the case of a merger, consolidation or amalgamation of a Subsidiary that is not a Guarantor into or with a Guarantor, the surviving company shall be a Loan Party;Guarantor; and
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vother than a Borrower) any Restricted Subsidiary may liquidate or dissolve if the Borrower MK Holdings determines in good faith that such liquidation or dissolution is in the best interests of the Borrower MK Holdings and its Subsidiaries and is not materially disadvantageous to the Lenders;
(viv) the Borrower and the Restricted Subsidiaries MK Holdings or any Subsidiary may dispose of property and assets, including Equity Interests effect any Investment permitted by Section 6.04 by means of a Subsidiarymerger, either directly consolidation or through amalgamation of or with the Person that is the subject of such Investment with MK Holdings or any of its Subsidiaries (provided that, in the case of a merger or consolidationamalgamation with any Loan Party, to the extent permitted by clause (c) of this SectionLoan Party is the survivor); and
(viivi) so long as no Default exists any Subsidiary (other than a Borrower) may change its legal form and any Domestic Subsidiary may be a party to a merger the sole purpose of which is to reincorporate or would result therefromreorganize in another jurisdiction in the United States if, in any such case, MK Holdings reasonably determines in good faith that such action is in the best interests of MK Holdings and its Subsidiaries and is not materially disadvantageous to the Lenders (it being understood that a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is Party will remain a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementLoan Party).
(b) The Borrower MK Holdings will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, engage to any material extent Dispose of (in any business other than businesses one or in a series of transactions) all or substantially all of the type conducted by the Borrower assets of MK Holdings and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary Group Member to, merge enter into any merger, consolidation or consolidate with any other Personamalgamation, or permit liquidate, wind up or dissolve itself (or suffer any other Person to merge into liquidation or consolidate with itdissolution), or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned property or hereafter acquired), or liquidate or dissolvebusiness, except that:
(i) (A) any Person Subsidiary of the Company may merge be merged, consolidated or amalgamated with or into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries Company (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party Company shall be the continuing or surviving entity);
corporation) or with or into any Wholly Owned Subsidiary Guarantor (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Wholly Owned Subsidiary Guarantor shall be the continuing or surviving entity corporation) and (B) any Excluded Subsidiary may merge, consolidate or amalgamate with any other Excluded Subsidiary;
(ii) if any Subsidiary of the Person formed by Company may Dispose of any or all of its assets to the Company or any Wholly Owned Subsidiary Guarantor (upon voluntary liquidation, winding up, dissolution or otherwise);
(iii) the Company or any Subsidiary thereof may be merged, consolidated or amalgamated with a Person, provided that (i) the Company or such Subsidiary is the continuing or surviving corporation and (ii) the shareholders of the Company or such Subsidiary immediately prior to such merger, consolidation or amalgamation hold the majority of the Equity Interests in the entity that results from such merger, consolidation or amalgamation;
(iv) the Company or any such merger or consolidation (Subsidiary thereof may make any such Person, the “Successor Company”) Disposition that is not a Disposition of all or substantially all of the property or business of the Group Members, taken as a whole;
(v) any De Minimis Subsidiary may voluntarily liquidate or dissolve to the extent the board of directors of such De Minimis Subsidiary Guarantor, deems it to be in its best interest and to the extent doing so would not reasonably be expected to have a Material Adverse Effect;
(vi) the Company may consummate the transactions described in Schedule 6.6; and
(vii) a Corporate Reorganization may be effected; provided that (A) any Person into which the Successor Company may be merged shall be an entity a corporation organized or existing under the laws of a State in the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor the Company under the Subsidiary Guaranty this Agreement and the other Loan Credit Documents to which the Subsidiary Guarantor is a party pursuant to a supplement supplements hereto and thereto or thereto other documents or instruments, in each case in form and substance reasonably satisfactory to the Administrative Agent, and shall take all actions as may be required to preserve the enforceability of the Credit Documents and the validity and perfection of the Liens created by the Collateral Documents, (B) no Default or Event of Default shall have occurred and be continuing or shall occur as a result of any such transaction, (C) such each Subsidiary Guarantor shall have delivered confirmed that its Obligations Guarantee and grant of Liens under the Collateral Documents shall apply to the Obligations of any such Person into which the Company may be merged and (D) the Administrative Agent an officer’s certificate stating that shall have received such merger or consolidation officers’ certificates and opinions of counsel as it may reasonably request in connection with such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementtransaction.
(b) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries Group Member to, engage Dispose of (i) any Principal Trade Name or (ii) any other Intellectual Property right owned by the Company or a Subsidiary Guarantor that is material to any material extent in any the business of the Company and the Group Members, taken as a whole, other than (A) in the case of each of clauses (i) and (ii), (1) non-exclusive or partial exclusive licenses in the ordinary course of business that do not materially interfere with the business of the Company and the Subsidiaries, taken as a whole (and, in the case of partial exclusive licenses, so long as (x) the Company or any of the Subsidiary Guarantors retains the right, as needed, to use such Intellectual Property in the conduct of their respective businesses and (y) the Company or any of the Subsidiary Guarantors, as applicable, retains a right to royalty arrangements on market terms as determined by the Company in good faith), and (2) exclusive licenses to use such Intellectual Property in specific markets outside the United States so long as (x) the Company or any of the Subsidiary Guarantors retains the right to use such Intellectual Property in the conduct of their respective businesses in the United States, (y) such licenses do not materially interfere with the business of the Company and the Subsidiaries, taken as a whole, and (z) the Company or any of the Subsidiary Guarantors, as applicable, retains a right to royalty arrangements on market terms as determined by the Company in good faith, and (B) in the case of clause (ii), Dispositions (other than those set forth in clause (A) immediately above) of (1) any such Intellectual Property in connection with Dispositions permitted hereunder of the assets to which such Intellectual Property relates to the extent that such Intellectual Property is not necessary for the conduct of any of the remaining businesses of the type conducted by Company and the Borrower Subsidiaries or (2) any such Intellectual Property that is, in the good faith determination of the Company, no longer material to the business of the Company and its Restricted Subsidiaries on the date Group Members, taken as a whole, at the time of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofsuch Disposition.
(c) The Borrower Company will not, and will not permit any of the Restricted Subsidiaries Group Member to, sellconsummate any Asset Sale, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
unless (i) dispositions the Company or sales such Group Member, as the case may be, receives consideration for such Asset Sale at least equal to the fair market value (calculated as of inventory, used, obsolete the date of the consummation of such Asset Sale and without giving effect to any adjustment not then determined or surplus equipment and Permitted Investments any subsequent changes in value) of the ordinary course of business;
assets Disposed of; (ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property for up to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights US$250,000,000 in the ordinary course aggregate of business which, in consideration received by the reasonable good faith determination of Company and the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables Group Members in connection with all Asset Sales under this clause (c), at least 50% of the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets consideration received in connection with any such Asset Sale (calculated as of the termination date of the consummation of such Asset Sale and without giving effect to any operating lease;
(xadjustment not then determined or any subsequent changes in value) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses Company or such Group Member, as the case may be, is in the form of this Section 6.03(c)Cash or Cash Equivalents, leasesand for any amount in excess thereof, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be received in cash or cash equivalents. The term “Substantial Portion” means, on any date, property connection with a net book value that represents more than 15% of the Consolidated Total Assets such Asset Sale (calculated as of the last day date of the last month before consummation of such Asset Sale and without giving effect to any adjustment not then determined or any subsequent changes in value) by the start Company or such Group Member, as the case may be, is in the form of Cash or Cash Equivalents; provided, however, that for purposes of this clause (ii), each of the following shall be deemed to be Cash: (A) any liabilities (as shown on the Company’s or such Group Member’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Company or such Group Member, other than any liabilities that are by their terms subordinated in right of payment in Cash to the Obligations or that are owed to the Company or a Group Member, that are assumed by the transferee with respect to the applicable Asset Sale and for which the Company and all of the Group Members shall have been validly released by all applicable creditors in writing, or otherwise cease to be obligations of the Company or any Group Member, and (B) any securities, notes or other obligations or assets received by the Company or such Group Member from such transferee that are converted by the Company or such Group Member into Cash (to the extent of the Cash received) within 180 days following the closing of the applicable Calculation PeriodAsset Sale; (iii) such Asset Sale otherwise complies with the applicable provisions of the Credit Documents; and (iv) to the extent required by the Collateral Documents or Section 5.7, all consideration received in such Asset Sale shall be expressly made subject to the Liens under the Collateral Documents.
(d) The Company will not, and will not permit any Group Member to, consummate any Disposition of assets that constitute Collateral (other than Dispositions of inventory in the ordinary course of business), in a single transaction or a series of related transactions, if after giving pro forma effect to such Disposition the Borrowing Base would be reduced by more than US$100,000,000, unless (i) after giving pro forma effect to such Disposition and the application of proceeds therefrom, the Borrowing Base Coverage Ratio is at least 1.10:1.00 and (ii) within ten days following the consummation of such Disposition, the Company shall have delivered a Borrowing Base Certificate pursuant to Section 5.1(c)(ii).
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary Person (other than the Borrower) may merge into (i) or consolidate with any Restricted Subsidiary in a transaction in which the Borrower or (ii) one or more surviving entity is such Restricted Subsidiaries Subsidiary (provided that when any such merger, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in such Subsidiary Guarantor as the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sellmerge into or consolidate with any Person in a transaction permitted under clauses (xiv), transfer, lease or otherwise (xv) and (xix) hereunder in which the surviving entity is not a Subsidiary;
(iv) any Restricted Subsidiary may dispose of all any or substantially all of its assets (upon voluntary liquidation, dissolution or otherwise) to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a other Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the ordinary course of business and the assignment, cancellation, abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions to the Borrower or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) any such Disposition made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 6.04 and (ii) if Equity Interests in a Domestic Subsidiary may not be transferred to a Foreign Subsidiary;
(viii) the Person formed discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(ix) leases, subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of the Borrower and the Restricted Subsidiaries taken as a whole;
(x) Liens incurred in compliance with Section 6.02;
(xi) Investments permitted by Section 6.04;
(xii) subject to Section 2.11(c), dispositions of property as a result of a casualty event involving such property or surviving any disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that the consideration received shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the Borrower);
(xv) sales or other Dispositions of non-core assets acquired in a Permitted Acquisition; provided that such sales shall be consummated within 360 days of such Permitted Acquisition; and provided further that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Borrower) and (ii) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (ii), the Borrower shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of the Borrower and delivered to the Administrative Agent, non-cash consideration received for any such merger or consolidation Disposition as cash consideration in an amount not to exceed $10,000,000 for each such Disposition);
(xvi) any Immaterial Asset Sale;
(xvii) Dispositions by any Restricted Subsidiary to any Unrestricted Subsidiary made in connection with any intercompany corporate reorganizations; provided that (i) any such Person, the “Successor Company”) is not such Subsidiary Guarantor, Disposition shall be on terms and conditions (A) the Successor Company shall be not materially less favorable to such Restricted Subsidiary than it would obtain on an entity organized arm’s-length basis from a Person that is not an Affiliate or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form otherwise reasonably satisfactory acceptable to the Administrative Agent, and (Cii) the aggregate fair market value of all such Subsidiary Guarantor shall have delivered Dispositions of property or series of related Dispositions of property made pursuant to this clause (xvii), or the Disposition Consideration payable to the Administrative Agent an officer’s certificate stating Borrower or any Restricted Subsidiary in connection therewith, shall not exceed $40,000,000;
(xviii) the Borrower or any Restricted Subsidiary may transfer, sell and/or pledge Receivables and Permitted Receivables Facility Assets under Permitted Receivables Facilities; and
(xix) Dispositions of assets that are not permitted by any other clause of this Section 6.03; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xix) shall not at the time of and immediately after giving effect to any such merger transaction exceed in any fiscal year 15% of Consolidated Total Assets at the end of the immediately preceding fiscal year of the Borrower. Any usage of the baskets set forth in this Section 6.03(a) by the Borrower or consolidation and such supplement any Restricted Subsidiary in compliance with the Existing Credit Agreement prior to the Subsidiary Guaranty comply with this Agreement; provided, further, that if Restatement Effective Date shall not reduce the foregoing are satisfied, amount of the Successor Company will succeed to, baskets for purposes of calculating basket availability and be substituted for, such Subsidiary Guarantor under this Agreementcovenant compliance on or after the Restatement Effective Date.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement Restatement Effective Date and any business businesses reasonably related, incidental or ancillary related thereto or that is a similar or complementary thereto or reasonable extension thereofextensions thereof (including, but not limited to the business of diagnostics, medical devices, delivery technologies and biotechnology).
(c) The Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodRestatement Effective Date.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellconsummate a Division as the Dividing Person, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, (x) the Borrower or any Restricted Subsidiary may sell Receivables under (i) Permitted Receivables Facilities (subject to the limitation set forth in Section 6.01(c)) and (ii) A/R Purchase Programs; and (y) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Restricted Subsidiaries may (A) sell inventory in the ordinary course of business, (B) sell or lease storage or pipeline capacity in the ordinary course of business, (C) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (D) enter into licenses of technology in the ordinary course of business, and (E) in addition to clauses (A) through (D) above, make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions that, together with all other property of the Borrower and its Restricted Subsidiaries previously leased, sold or disposed of as permitted by this clause (subject to E) at any time after the limitation that the Attributable Receivables Indebtedness thereunder shall Effective Date, does not exceed an aggregate amount permitted under Section 6.01(h))$200,000,000;
(v) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) any Restricted Subsidiary that is not a Loan Party may merge into any Restricted Subsidiary (provided that any such merger involving a Restricted Subsidiary that is a Loan Party must result in such Loan Party being the surviving entity);
(vii) the Borrower and the Restricted Subsidiaries may dispose engage in any transactions constituting Restricted Payments to the extent permitted under Section 6.07 and Investments to the extent permitted under Section 6.04; and
(viii) any Subsidiary may (A) Dispose of property Investments in cash and assetsPermitted Investments in the ordinary course of business, including Equity Interests (B) effect Dispositions in connection with any theft, loss, physical destruction or damage, taking or similar event with respect to any of a Subsidiarytheir respective properties; and (C) effect the write-off of good will or other intangibles in the ordinary course of business. Upon the occurrence and during the continuance of an Event of Default, either directly or through a merger or consolidationthe Administrative Agent, at the request of the Required Lenders, shall by notice to the Borrower direct the Borrower to cause any Receivables Entity to exercise any voluntary option available to such Receivables Entity under the applicable Permitted Receivables Facility to terminate such Permitted Receivables Facility and the Borrower shall, upon receipt of such direction, cause such Receivables Entity to exercise such option and cause the Receivables Entity to, to the extent permitted by clause (c) required thereunder in connection with the exercise of this Section; and
(vii) so long as no Default exists such option, repurchase all purchase interests in any Receivables or would result therefromtake such other actions, a Subsidiary Guarantor may merge or consolidate in each case, in accordance with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor the terms of the Permitted Receivables Facility Document. The Administrative Agent shall be provide concurrent notice to the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing administrative agent under the laws applicable Permitted Receivables Facility of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have direction delivered to the Borrower pursuant to the foregoing sentence (provided that the Administrative Agent an officer’s certificate stating that shall not be liable to such merger administrative agent or consolidation and any securitization lender or purchaser for failure to provide such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementnotice).
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddate hereof.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Fundamental Changes and Asset Sales. (a) The Irish Holdco, the Irish Sub Holdco, the Lux Holdco and each Borrower will not, and will not permit any Restricted Subsidiary to, merge into into, amalgamate with or consolidate with any other Person, or permit any other Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate liquidate, dissolve or dissolvewind-up, except that:
(i) any Person (other than the Lux Holdco, any Borrower, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the Target) or Restricted Subsidiary thereof) or any Intermediate Parent Entity may merge into into, amalgamate with or consolidate with the Borrower Irish Holdco in a transaction in which the Borrower Irish Holdco is the surviving corporation;
(ii) (x) any Person (other than Irish Holdco, any Borrower, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the Target or any Intermediate Parent Entity) may merge into, amalgamate with or consolidate with any Restricted Subsidiary may merge into (i) of the Lux Borrower or (ii) one or more in a transaction in which the surviving entity is such Restricted Subsidiaries Subsidiary (provided that when any such merger, amalgamation, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in such Subsidiary Guarantor as the surviving entity)) and, (y) the 2013 Senior Notes Issuer, any Permitted Co-Borrower or any New Notes Issuer may merge into, amalgamate with or consolidate with any other such Person in a transaction in which the surviving entity is any such Person and (z) any Intermediate Parent Entity may merge into, amalgamate with or consolidate with any other Intermediate Parent Entity in a transaction in which the surviving entity is an Intermediate Parent Entity;
(iii) the Borrower or any Restricted Subsidiary may sell(other than any Borrower, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor direct or indirect holding company thereof, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the TargetIntermediate Parent Entity) may merge into, amalgamate with or consolidate with any Person in such a transaction permitted under clauses (xiv), (xv) and (xix) hereunder in which the surviving entity is not a Loan Party, then the transferee must be a Loan PartySubsidiary;
(iv) (x) any Restricted Subsidiary (other than any Borrower, or any direct or indirect holding company thereof, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the TargetIntermediate Parent Entity) may dispose of any or all of its assets (upon voluntary liquidation, dissolution, winding-up otherwise) to the Lux Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation of its Restricted Subsidiaries; provided that the Attributable Receivables Indebtedness thereunder foregoing shall not exceed an aggregate amount permitted under Section 6.01(h))permit the voluntary liquidation, dissolution or winding-up of any Borrower or the direct holding company of any Borrower;and (y) any Intermediate Parent Entity may dispose of any or all of its assets (upon voluntary liquidation, dissolution, winding-up otherwise) to any other Intermediate Parent Entity or to Irish Holdco;
(v) any Restricted Subsidiary (other than Lux Holdco, any Borrower, the 2013 Senior Notes Issuer, any New Notes Issuer, US Holdco, Endo or the Target) may liquidate liquidate, dissolve or dissolve wind-up if the Borrower Irish Holdco determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Irish Holdco and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other disposition of intellectual property that is, in the reasonable judgment of the Irish Holdco, no longer economically practicable to maintain or useful in the conduct of the business of the Irish Holdco and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions (or would result therefrom, a Subsidiary Guarantor may merge any license or consolidate with sublicense of intellectual property) to the Irish Holdco or any other Person that is not a Restricted Subsidiary; provided that any such Disposition (ior any license or sublicense of intellectual property) such made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 6.04;
(ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (Aviii) the Successor Company discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(ix) leases, subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of the Irish Holdco and the Restricted Subsidiaries taken as a whole;
(x) Liens incurred in compliance with Section 6.02;
(xi) Investments permitted by Section 6.04;
(xii) subject to Section 2.11(c)(1), dispositions of property as a result of a casualty event involving such property or any disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that the consideration received shall be in an entity organized or existing under amount at least equal to the laws fair market value thereof (determined in good faith by the board of directors of the United States, any state Irish Holdco);
(xv) sales or commonwealth thereof, the District other Dispositions of Columbia or any territory thereof, (B) the Successor Company non-core assets acquired in a Permitted Acquisition; provided that such sales shall expressly assume all the obligations be consummated within 360 days of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this AgreementPermitted Acquisition; provided, further, that if (i) the foregoing are satisfiedconsideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Irish Holdco) and (ii) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (ii), the Successor Company will succeed toIrish Holdco shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of the Irish Holdco and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed $10,000,000 for each such Disposition);
(xvi) any Immaterial Asset Sale;
(xvii) any lease or sublease by Endo of a portion of its interest in its headquarters located in Malvern, Pennsylvania;
(xviii) the Irish Holdco or any Restricted Subsidiary may transfer, sell and/or pledge Receivables and Permitted Receivables Facility Assets under Permitted Receivables Facilities;
(xix) Dispositions of assets that are not permitted by any other clause of this Section 6.03; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xix) shall not at the time of and immediately after giving effect to any such transaction exceed in any fiscal year 15% of Consolidated Total Assets at the end of the immediately preceding fiscal year of the Irish Holdco;
(xx) the Transactions (including, without limitation, the Acquisition, the Merger, and each other transaction set forth in the Structure Paper) and the Par Transactions may be substituted forconsummated; and
(xxi) Dispositions of assets (but not Equity Interests in any Restricted Subsidiary unless such Restricted Subsidiary is not a Borrower (or a direct or indirect holding company thereof)) that are not permitted by any other clause of this Section 6.03; provided that (x) the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xxi) shall not at the time of and immediately after giving effect to any such Subsidiary Guarantor under transaction exceed in the aggregate for all Dispositions effected pursuant to this Agreementclause (xxi) (including the Disposition being made) 30% of Consolidated Total Assets at the end of the immediately preceding fiscal year of the Irish Holdco, (y) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Irish Holdco) and (z) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (z), the Irish Holdco shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of the Irish Holdco and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed, in the aggregate for all such Dispositions, the greater of (1) $100,000,000 and (2) 1.5% of Consolidated Total Assets as of the end of the most recent fiscal quarter of the Irish Holdco for which Financials have been delivered (or, prior to the first delivery of any such financial statements, as set forth in the pro forma consolidated financial statements delivered pursuant to Section 4.01(q)(iii)).; and
(xxii) Disposition of assets constituting the AMS Asset Sales.
(b) The Irish Holdco, the Irish Sub Holdco, the Lux Holdco and each Borrower will not, and will not permit any of its their respective Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Irish Holdco and its Restricted Subsidiaries on the date of execution of Closing Date (for this Agreement purpose, determined as if the Transactions had been effected prior to such date) and any business businesses reasonably related, incidental or ancillary related thereto or that is a similar or complementary thereto or reasonable extension thereofextensions thereof (including, but not limited to the business of diagnostics, medical devices, delivery technologies and biotechnology).
(c) The Borrower will not, and Irish Holdco will not permit any of change its fiscal year from the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property basis applicable to Endo prior to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodClosing Date.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellconsummate a Division as the Dividing Person, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, (x) the Borrower or any Subsidiary may sell Receivables under (i) Permitted Receivables Facilities (subject to the limitation set forth in Section 6.01(c)) and (ii) A/R Purchase Programs; and (y) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) sell or lease storage or pipeline capacity in the ordinary course of business, (C) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (D) enter into licenses of technology in the ordinary course of business, and (E) in addition to clauses (A) through (D) above, make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (subject to E) at any time after the limitation that the Attributable Receivables Indebtedness thereunder shall Restatement Effective Date, does not exceed an aggregate amount permitted under Section 6.01(h))$150,000,000;
(v) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) any Subsidiary that is not a Loan Party may merge into any Subsidiary (provided that any such merger involving a Subsidiary that is a Loan Party must result in such Loan Party being the surviving entity);
(vii) the Borrower and the Restricted Subsidiaries may dispose engage in any transactions constituting Restricted Payments to the extent permitted under Section 6.07 and Investments to the extent permitted under Section 6.04; and
(viii) any Subsidiary may (A) Dispose of property investments in cash and assetsPermitted Investments in the ordinary course of business, including Equity Interests (B) effect Dispositions in connection with any theft, loss, physical destruction or damage, taking or similar event with respect to any of a Subsidiarytheir respective properties; and (C) effect the write-off of good will or other intangibles in the ordinary course of business. Upon the occurrence and during the continuance of an Event of Default, either directly or through a merger or consolidationthe Administrative Agent, at the request of the Required Lenders, shall by notice to the Borrower direct the Borrower to cause any Receivables Entity to exercise any voluntary option available to such Receivables Entity under the applicable Permitted Receivables Facility to terminate such Permitted Receivables Facility and the Borrower shall, upon receipt of such direction, cause such Receivables Entity to exercise such option and cause the Receivables Entity to, to the extent permitted by clause (c) required thereunder in connection with the exercise of this Section; and
(vii) so long as no Default exists such option, repurchase all purchase interests in any Receivables or would result therefromtake such other actions, a Subsidiary Guarantor may merge or consolidate in each case, in accordance with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor the terms of the Permitted Receivables Facility Document. The Administrative Agent shall be provide concurrent notice to the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing administrative agent under the laws applicable Permitted Receivables Facility of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have direction delivered to the Borrower pursuant to the foregoing sentence (provided that the Administrative Agent an officer’s certificate stating that shall not be liable to such merger administrative agent or consolidation and any securitization lender or purchaser for failure to provide such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementnotice).
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodRestatement Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Fundamental Changes and Asset Sales. (a) The Borrower Ultimate Parent will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary of Ultimate Parent may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity), and any Subsidiary of Ultimate Parent that is not a Loan Party may merge with or into any other Subsidiary of Ultimate Parent that is not a Loan Party;
(iii) the Borrower or any Restricted Subsidiary of Ultimate Parent may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) Ultimate Parent and its Subsidiaries may (A) sell inventory, dispose of cash and cash equivalents, lease or sublease interests in real property, dispose of accounts receivable in connection with the Borrower collection or compromise thereof, surrender or waive contractual rights or settle, release or surrender contract or tort claims, in each case, in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used or obsolete equipment for value in the ordinary course of business consistent with past practice, (C) grant leases, non-exclusive licenses, subleases or non-exclusive sublicenses of real property, intellectual property or other personal property (as lessor or licensor) in the ordinary course of business on customary terms which does not interfere with the business of the Loan Parties in any material respect, (D) sell or otherwise dispose of auction rate securities, (E) the non-exclusive licensing of intellectual property to third parties on customary terms or the exclusive licensing, sale, transfer, abandonment, allowance to lapse or other disposition of intellectual property that is, in the applicable Loan Party’s reasonable business judgment, no longer useful in its business, in each case, in the ordinary course of business, (F) to the extent required by applicable law, the sale or other disposition of a nominal amount of Equity Interests in any Subsidiary may transferin order to qualify members of the board of directors or equivalent governing body of such Subsidiary, sell and/or pledge Permitted Receivables Related (G) unwinding of swap or hedging arrangements in the ordinary course of business and consistent with past practice and (H) so long as no Event of Default has occurred and is continuing make any other sales, transfers, leases or dispositions of assets not otherwise permitted under this Section 6.03, the book value of which (excluding goodwill relating thereto), together with all other property of Ultimate Parent and its Subsidiaries previously leased, sold, transferred or disposed of as permitted by this clause (H) during any fiscal year of Ultimate Parent, does not exceed 10% of Consolidated Tangible Assets under Permitted Receivables Facilities (subject determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or Section 5.01(b) (or, prior to the limitation delivery of any such financial statements, the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a)); provided that the Attributable Receivables Indebtedness thereunder aggregate book value of all of the assets (excluding goodwill relating thereto) of Ultimate Parent and its Subsidiaries sold, transferred, leased or disposed of in reliance upon this clause (H) during the term of this Agreement shall not exceed an aggregate amount permitted under Section 6.01(h))equal to $80,000,000;
(v) so long as no Event of Default has occurred and is continuing, sales of non-core assets acquired in connection with a Permitted Acquisition which assets (x) are not useful in the business of Ultimate Parent and its Subsidiaries and (y) together with any Restricted other non-core assets acquired in connection with such Permitted Acquisition and sold pursuant to this Section 6.03(a)(v), (a) do not account for more than 10% of the consideration paid in connection with such Permitted Acquisition or (b) as otherwise required to obtain the approval of any applicable antitrust authority in connection with such Permitted Acquisition;
(vi) any Subsidiary of Ultimate Parent that is not a Loan Party may (A) liquidate or dissolve if the Borrower Ultimate Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Ultimate Parent and is not materially disadvantageous to the LendersLenders and (B) sell, transfer, lease or otherwise dispose of its assets to another Subsidiary of Ultimate Parent that is not a Loan Party;
(vivii) Ultimate Parent and its Subsidiaries may enter into Sale and Leaseback Transactions permitted under Section 6.10;
(viii) the Borrower sale or discount or factoring, in each case without recourse and in the Restricted ordinary course of business, of overdue accounts receivable arising in the ordinary course of business;
(ix) any issuances, sales or other dispositions of Equity Interests of Ultimate Parent (including any public or private sale of Equity Interests of Ultimate Parent, and any conversions or exchanges of the Existing Warrants), and any issuances, sales or other dispositions of Equity Interests to another Loan Party;
(x) Ultimate Parent and its Subsidiaries may make acquisitions and other investments permitted by Section 6.04 (other than with respect to clause (j) thereof), create, incur or assume any Lien permitted under Section 6.02 and make any Restricted Payments permitted by Section 6.07;
(xi) dispose of cash and Permitted Investments in the ordinary course of business (including the conversion of Permitted Investments into cash or other Permitted Investments in the ordinary course of business);
(xii) dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted that (x) such property is exchanged for credit against the purchase price of similar replacement property or (y) the proceeds of such disposition are promptly applied to the purchase price of such replacement proper;
(xiii) abandon, fail to maintain, not renew or otherwise dispose of any intellectual property (or rights relating thereto) that is no longer material to Ultimate Parent and its Subsidiaries’ business, as determined in good faith by clause Ultimate Parent or such Subsidiary;
(cxiv) Ultimate Parent and its Subsidiaries may undertake or consummate any Tax Restructuring;
(xv) (w) the sale of this Sectionany Permitted Convertible Indebtedness by Ultimate Parent, (x) the entry into any Permitted Equity Derivative Transaction by Ultimate Parent in connection with the issuance of any Permitted Convertible Indebtedness, (y) the settlement, unwinding or termination of any Permitted Equity Derivative Transaction, or (z) the issuance of Equity Interests pursuant to the conversion or exchange of Permitted Convertible Indebtedness; and
(viixvi) so long as no Default exists any Person (other than Ultimate Parent or would result therefrom, any of its Subsidiaries) may merge into a Subsidiary Guarantor may merge of Ultimate Parent in connection with a Permitted Acquisition in which the Subsidiary is the surviving entity; provided that any such merger or consolidate with any other consolidation involving a Person that is not a Restricted Subsidiary; provided that (i) such Wholly-Owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any of Ultimate Parent immediately prior to such merger or consolidation (any such Person, the “Successor Company”) shall not be permitted unless it is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementalso permitted by Section 6.04.
(b) The Borrower Ultimate Parent will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Ultimate Parent and its Restricted Subsidiaries (taken as a whole) on the date of execution of this Agreement and any business businesses reasonably related, incidental ancillary, similar, complementary or ancillary synergistic thereto or that is a reasonable extension extensions, development or expansion thereof.
(c) The Borrower Ultimate Parent will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year from the basis in effect on the Effective Date. Notwithstanding anything to the contrary in the foregoing, transfer, lease or otherwise dispose of any the performance by Ultimate Parent of its property or assetsobligations under the Existing Warrants, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or an asset sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses for purposes of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodAgreement.
Appears in 1 contract
Samples: Credit Agreement (Grindr Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iiiA) the Borrower or any Restricted Subsidiary Loan Party may sell, transfer, lease or otherwise dispose of all its assets, or substantially all any of the Equity Interests of any of its assets Subsidiaries, to another Loan Party and (B) any Subsidiary that is not a Loan Party may sell, transfer, lease or otherwise dispose of its assets, or any of the Equity Interests of any of its Subsidiaries, to the Borrower or any Restricted other Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h)of $125,000,000);
(v) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any Restricted other sales, transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) during any fiscal year of the Borrower, does not exceed an amount equal to ten percent (10%) of Consolidated Total Assets as of the end of the preceding fiscal year of the Borrower; and
(vi) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of ; provided that any such merger involving a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation (any such Person, the “Successor Company”) is shall not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementpermitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assets, or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, or form any Subsidiary that is not, immediately upon the creation thereof, a Subsidiary Guarantor by joinder to the Subsidiary Guaranty and the Security Agreement pursuant to documentation acceptable to Administrative Agent, and with its Equity Interests being pledged as part of the Collateral by joinder to the Pledge Agreement of the Loan Party owning the Equity Interests of such Subsidiary except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
, (ii) any Restricted Subsidiary may merge into (i) any Subsidiary Guarantor in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that surviving entity is a Loan Party is merging with a Restricted SubsidiarySubsidiary Guarantor, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Partyto another Subsidiary Guarantor, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
, and Administrative Agent is given notice of the intention to effect such liquidation or dissolution not less than ten (vi10) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, Business Days prior to the extent permitted by clause (c) of this Sectioncommencement thereof; and
(vii) so long as no Default exists or would result therefrom, provided that any merger involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation shall not be permitted unless also permitted by Section 6.04, and (any such Person, v) the “Successor Company”) is not such Subsidiary Guarantor, Borrower and its Subsidiaries may (A) sell, transfer or otherwise dispose of inventory in the Successor Company shall be an entity organized or existing under the laws ordinary course of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereofbusiness, (B) sell, transfer or otherwise dispose of used, obsolete, worn out or surplus property in the Successor Company shall expressly assume all the obligations ordinary course of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentbusiness, and (C) such Subsidiary Guarantor sell, transfer or otherwise dispose of Accounts (excluding sales or dispositions in a factoring arrangement) in connection with the compromise, settlement or collection thereof, (D) sell, transfer or otherwise dispose of cash and Permitted Investments in the ordinary course of business, (E) make dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of any Borrower or any Subsidiary, (F) enter into licenses of technology in the ordinary course of business, (G) sell, transfer or otherwise dispose of any of its assets to any Loan Party, (H) if the Vulcan Acquisition is consummated, sell the hospice facilities of the Vulcan Target in accordance with Section 10.21 of the Vulcan Acquisition Agreement, (I) if the Vulcan Acquisition is consummated, transfer the indirect ownership interest of the Vulcan Seller in a subsidiary of the Vulcan Target to an affiliate of the Vulcan Seller pursuant to Sections 14.3(a) and/or 17.19 of the Vulcan LLC Agreement and (J) make any other sales, transfers, leases or dispositions of assets, so long as (x) the aggregate book value of all assets sold, transferred, leased or otherwise disposed of during any fiscal year of the Borrower in reliance on this clause (J) shall not exceed ten percent (10%) of Net Worth as of the most recently ended fiscal year of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) (or, prior to the Administrative Agent an officer’s certificate stating that delivery of any such merger financial statements, as of the fiscal year ended January 1, 2016) and (y) at least 75% of the total consideration for each such sale, transfer, lease or consolidation other disposition received by the Borrower and such supplement to its Subsidiaries shall be in the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementform of cash or Permitted Investments.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type or closely related to the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably relatedrelated thereto, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary which shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) deemed for purposes of this Agreement to include the disposition or sale provision of accounts receivable pursuant to a Permitted Receivables Facility permitted hospice care and the businesses conducted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower Vulcan Target and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with subsidiaries on the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodRevolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (Almost Family Inc)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellconsummate a Division as the Dividing Person, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, (x) any Subsidiary of the Borrower may sell Receivables under (i) Permitted Receivables Facilities (subject to the limitation set forth in Section 6.01(c)) and (ii) A/R Purchase Programs; and (y) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) another Subsidiary of the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity)Borrower;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all Dispose of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then another Subsidiary of the transferee must be a Loan PartyBorrower;
(iv) the Borrower’s Subsidiaries may:
(A) Dispose of inventory in the ordinary course of business,
(B) Dispose of storage or pipeline capacity in the ordinary course of business,
(C) effect sales, trade-ins or other Dispositions of used, obsolete, worn-out or surplus equipment for value in the ordinary course of business consistent with past practice, Table of Contents
(D) enter into licenses of technology in the ordinary course of business,
(E) Dispose of Investments in cash and Permitted Investments in the ordinary course of business,
(F) enter into leases, subleases, licenses or sublicenses of real or personal property granted by any Subsidiary of the Borrower to others in the ordinary course of business not interfering in any material respect with the business of the Borrower or any Subsidiary may transferof its Subsidiaries,
(G) effect Dispositions in connection with any theft, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities loss, physical destruction or damage, taking or similar event with respect to any of their respective properties; and
(subject to H) effect the limitation that write-off of good will or other intangibles in the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))ordinary course of business;
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, engage in any transactions constituting Restricted Payments to the extent permitted by clause (c) of this Sectionunder Section 6.07 and Investments to the extent permitted under Section 6.04; and
(vii) so long as no Default exists or would result therefrom, a any Subsidiary Guarantor of the Borrower may merge into or consolidated with any other Person, or permit any other Person to merge into or consolidate with any other Person that is not it, or consummate a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be Division as the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Dividing Person, or the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia Borrower or any territory thereof, of its Subsidiaries may Dispose of its assets (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party including pursuant to a supplement hereto Sale and Leaseback Transaction or thereto any of the Equity Interests of any of its Subsidiaries (in form reasonably satisfactory each case whether now owned or hereafter acquired)), provided that after giving effect to such transaction or series of transactions the Borrower shall be in compliance on a pro forma basis with the financial covenant contained in Section 6.11(a) recalculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements were required to be delivered pursuant to Section 5.01, as if such transaction or series of transactions had occurred on the first day of the relevant period for testing such compliance, and, to the Administrative Agent, and (C) extent any such Subsidiary Guarantor transaction have value greater than or equal to $250,000,000 the Borrower shall have delivered to the Administrative Agent an officer’s for distribution to each of the Lenders a certificate stating of a Financial Officer of the Borrower evidencing the continued compliance with the terms and conditions of this Agreement and the other Loan Documents in form and substance reasonably acceptable to the Administrative Agent; provided that any such merger or consolidation and or Division involving a Person that is not a wholly-owned Subsidiary immediately prior to such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and merger or consolidation or Division shall not be substituted for, such Subsidiary Guarantor under this Agreementpermitted unless it is also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Fundamental Changes and Asset Sales. (a) The Borrower No Loan Party or Subsidiary will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) any other Person, or permit any other Person to merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) it, or sell, transfer, lease or otherwise dispose (each, a “disposal” or “disposition”) of (in one transaction or in a series of transactions) all of its assetsany assets (whether now owned or hereafter acquired) to any Person, or liquidate or dissolve. Notwithstanding the foregoing the following, shall be permitted:
(i) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person may merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any Borrower in a transaction in which the applicable Borrower is the surviving entity (provided that if a Subsidiary Borrower merges or consolidates with or into Parent, Parent is the surviving corporation),
(ii) any Subsidiary may merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any other Subsidiary in a transaction in which the surviving entity is a wholly-owned Subsidiary (in the case of a Loan Party, subject to preceding clause (i)),
(iii) assets or equity interests of any Subsidiary may be disposed of to any other wholly-owned Subsidiary or to the Parent or by a Borrower to another Borrower or by a Borrower to a wholly-owned Subsidiary,
(iv) the Parent or any Subsidiary may dispose of assets or property to any other Person; provided, that, the aggregate book or fair market value of all assets disposed (to a Person other than the Parent, a Borrower or substantially all any other wholly-owned Subsidiary) under this clause (iv) during any fiscal year of Parent shall not exceed 15% of the Equity Interests total consolidated assets of the Parent and its consolidated Subsidiaries, determined in accordance with GAAP, measured as of the last day of the immediately preceding fiscal year for which financial statements have been or were required to be delivered pursuant to this Agreement,
(v) the Parent and its Subsidiaries may dispose of inventory in the ordinary course of business,
(vi) Parent and its Subsidiaries may transfer assets in connection with a Financing Arrangement permitted under Section 6.03,
(vii) the Parent or any Subsidiary may lease, as lessor or sublessor, or license, as licensor or sub licensor, real or personal property (other than any intellectual property) in the ordinary course of its Restricted Subsidiaries business, provided that no such lease or license shall materially interfere with the ordinary course of business of the Parent or any Subsidiary,
(viii) the Parent or any Subsidiary may liquidate or sell Cash Equivalents,
(ix) the Parent or any Subsidiary may, in the ordinary course of business, licence or sublicense intellectual property owned or held by the Parent or such Subsidiary so long as each casesuch license is non exclusive and in the ordinary course of business,
(x) the Parent or any Subsidiary may dispose of obsolete or worn out property, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, and may dispose of property no longer used or useful in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement Parent or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; andSubsidiary,
(xi) the Parent or any Subsidiary may sell Receivable Assets to a Securitization Entity in addition a Qualified Securitization Transaction for the fair market value thereof; provided that at no time shall more than US$1,000,000,000 (or its equivalent in another currency or currencies) in fair market value of assets be subject to such Qualified Securitization Transaction,
(xii) any Subsidiary may pay dividends or make any other distribution,
(xiii) the Parent may pay cash dividends (or dividends paid in the form of common equity of the Parent) to its shareholders, to the dispositions permitted by extent lawful, and
(xiv) any Subsidiary may liquidate or dissolve (with any residual assets being applied in accordance with one of the other clauses of this Section 6.03(c6.01), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Samples: Senior Unsecured Revolving Credit Agreement (Teva Pharmaceutical Industries LTD)
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellliquidate or dissolve, transfer(including, lease or otherwise dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, pursuant to a Division) except that:
, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) any Person Subsidiary may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving corporation;
, (ii) any Restricted Subsidiary (including a Subsidiary Guarantor) may merge into (i) any other Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is a Subsidiary (provided that when that, in the case of a Restricted merger of a Subsidiary that is not a Loan Party Foreign Subsidiary Borrower into a Foreign Subsidiary Borrower in which the surviving Subsidiary is merging with a Restricted Subsidiarynot the Foreign Subsidiary Borrower, the Loan Party surviving Subsidiary shall be execute and deliver to the surviving entityAdministrative Agent a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and shall satisfy the other conditions precedent set forth in Section 4.03);
, and (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vother than a Foreign Subsidiary Borrower) any Restricted Subsidiary may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and its Subsidiaries and is not materially disadvantageous to the Lenders;
(vi) #93177127v17 Lenders and except that the Borrower and the Restricted Subsidiaries Company or any Subsidiary may dispose of property and assets, including Equity Interests effect any acquisition permitted by Section 6.04 by means of a Subsidiary, either directly or through a merger or consolidation, to of the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not the subject of such acquisition with the Company or any of its Subsidiaries (provided that, in the case of a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be merger with the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such PersonCompany, the “Successor Company”) Company is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementsurvivor).
(b) The Borrower Company will not, and nor will not it permit any of its Restricted Subsidiaries to, engage to any material extent sell, lease, transfer or otherwise disposeDispose of (in any business other than businesses one transaction or a series of transactions) all or substantially all of the type conducted by assets of the Borrower Company and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is taken as a reasonable extension thereofwhole.
(c) The Borrower During the Covenant Relief Period, the Company will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellDispose of (in one transaction or a series of related transactions) assets of the Company and its Subsidiaries, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), exceptthan:
(i) dispositions any Disposition described in Schedule 6.03;
(ii) any ordinary course Disposition in connection with the closure of stores;
(iii) any Disposition of cash or sales Permitted Investments or obsolete, damaged, unnecessary, unsuitable or worn out equipment or of inventoryassets no longer used in the business or any sale or disposition of assets in connection with scheduled turnarounds, used, obsolete or surplus maintenance and equipment and Permitted Investments facility updates;
(iv) any Disposition of assets or issuance of securities by (x) a Subsidiary to the Company or a Material Subsidiary (other than an Excluded Subsidiary) or (y) the Company to a Material Subsidiary (other than an Excluded Subsidiary);
(v) grants, licenses or sublicenses of software, technology, patents, trademarks, copyrights, know-how, trade secrets, content, data and databases and any other intellectual property or other intangibles in the ordinary course of business;
(iivi) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale Dispositions of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or business, but excluding Dispositions of accounts receivable in bankruptcy factoring or similar proceedingstransactions;
(viiivii) any surrender Dispositions of inventory, equipment, accounts receivable or waiver other assets held for sale in the ordinary course of contract rights business, the settlement or write-off of accounts receivable in the ordinary course of business or the settlement, release, recovery on or surrender conversion of contract, tort or other claims of any kind accounts receivable to notes receivable in the ordinary course of business;
(ixviii) dispositions Dispositions resulting from any casualty or other insured damage to, or any taking under power of leasehold improvements eminent domain or leased assets in connection with the termination of by condemnation or similar proceeding of, any operating leaseproperty or asset;
(xix) the unwinding or termination of any Swap Agreements; and
(xix) other Dispositions (other than of Collateral (as defined in addition the Security Agreement)) pursuant to which the Company or its Subsidiaries receive consideration at least equal to the dispositions permitted fair market value of the assets subject to the Disposition (as reasonably determined by the other clauses of this Section 6.03(c), leases, sales Company) and the Net Proceeds received by the Company or other dispositions of property, either directly or through a merger or consolidation, that, its Subsdiaries shall not exceed $250,000,000 in the aggregate when taken together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property Dispositions made pursuant to this clause (xi) shall be made for fair value andx). Notwithstanding anything herein to the contrary, if during the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before period commencing from the start of the applicable Calculation PeriodCovenant Relief Period and ending on the later of (x) the end of the Covenant Relief Period and (y) the Release Date, the Company and its Subsidiaries shall not Dispose of any material Intellectual Property (as defined in the Security Agreement).
Appears in 1 contract
Samples: Credit Agreement (Tapestry, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose make any Asset Sale of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing:
(i) any Person may merge into or consolidate with the Borrower in a transaction in which (A) the Borrower is the surviving corporationcorporation or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”),
(1) the Successor Borrower shall be an entity organized or existing under the laws of the United States or any political subdivision thereof, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered (prior to or substantially concurrently with such transaction) to the Administrative Agent a certificate of an officer of the Borrower, stating that such merger or consolidation complies with this Agreement; provided that, if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents;
(ii) any Restricted Subsidiary may merge into or consolidate with another Subsidiary; provided that, except as permitted under clause (iiii) the Borrower below, any such merger or (ii) one or more Restricted Subsidiaries (provided that when consolidation involving a Restricted Subsidiary that is a Loan Party must result in such Subsidiary that is merging with a Restricted Subsidiary, the Loan Party shall be being the surviving entity)entity in such merger or consolidation;
(iii) the Borrower or in connection with a Permitted Acquisition, any Restricted Subsidiary may sellmerge or consolidate with an entity which is the surviving entity of such merger or consolidation, transferso long as such surviving entity becomes a Subsidiary and, lease or otherwise dispose of all or substantially all of its assets to if the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is non-surviving Subsidiary was a Loan Party, then the transferee must be a Loan PartyParty within the period provided in Section 5.09 or is otherwise allowed pursuant to the definition of Permitted Acquisition;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject make Asset Sales to the limitation Borrower or a Subsidiary; provided that the Attributable Receivables Indebtedness thereunder any such Asset Sales by a Loan Party to a Subsidiary that is not a Loan Party shall not exceed an aggregate amount $20,000,000 except as permitted under Section 6.01(h))clause (v) or clause (vi) below;
(v) the Borrower or any Subsidiary may make an Asset Sale to the extent permitted under Section 6.04 and 6.10;
(vi) the Borrower or any Subsidiary may:
(A) sell inventory and other assets in the ordinary course of business;
(B) effect sales, trade-ins or dispositions of used, obsolete, substantially worn or damaged property or equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(C) enter into licenses of intellectual property or other technology in the ordinary course of business;
(D) enter into leases or allow the occupancy or sub-leasing of real property in the ordinary course of business;
(E) effect sales or discounts, in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, in connection with the compromise or collection thereof;
(F) permit transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the Governmental Authority that has condemned such property (whether by deed in lieu of condemnation or otherwise), and permit transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement;
(G) create, incur and assume Liens permitted under Section 6.02;
(H) make Restricted Payments permitted under Section 6.07;
(I) voluntarily terminate any Swap Agreement;
(J) allow the lapse of registered patents, trademarks and other intellectual property if such lapse could not reasonably be expected to result in a Material Adverse Effect;
(K) make an Asset Sale of assets (1) that are not used or useful to the core or principal business of the Borrower and the Subsidiaries acquired pursuant to a Permitted Acquisition or an investment permitted hereunder that is consummated within twelve (12) months prior to the date of such proposed Asset Sale, or (2) to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition; provided that the Fair Market Value of such assets shall be less than 25% of the purchase price of such Permitted Acquisition or value of such investment;
(L) make any other Asset Sale so long as the book value thereof, taken together with the book value of all other assets of the Borrower and its Subsidiaries previously subject to an Asset Sale as permitted by this clause (L), does not exceed $50,000,000 in any calendar year;
(M) additional Assets Sales for Fair Market Value not otherwise permitted under this Section 6.03; provided that (1) at least 75% of the consideration for any Asset Sale under this clause (M) shall consist of cash or Permitted Investments or any combination thereof (provided that for purposes of the 75% cash and Permitted Investments consideration requirement in connection with any Asset Sale, (w) the amount of any Indebtedness or other liabilities of the Borrower and its Subsidiaries (as shown on the Borrower’s most recent consolidated balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Asset Sale, (y) any securities received by the Borrower or any Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or Permitted Investments within one hundred eighty (180) days following the closing of such Asset Sale and (z) any Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and all Designated Non-Cash Consideration received pursuant to Section 6.10(c), that is outstanding at the time of receipt of such Designated Non-Cash Consideration in respect of such Asset Sale, not in excess of the greater of $40,000,000 and 2.0% of Consolidated Total Assets shall, in each case of clauses (w), (x), (y) and (z), be deemed to be cash or Permitted Investments) and (2) the Net Cash Proceeds thereof are reinvested in the business of the Borrower and its Subsidiaries or applied in accordance with Section 2.11(f);
(N) transfer property subject to a Casualty Event upon receipt of the Net Cash Proceeds of such Casualty Event;
(O) effect Asset Sales of investments in Joint Ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the Joint Venture parties set forth in Joint Venture arrangements and similar binding arrangements; and
(P) effect Asset Sales of the stock or other equity interests of Evolent Health Holdings, Inc., Evolent Health, Inc. or Evolent Health LLC (or any successor to any thereof);
(vii) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is could not materially disadvantageous reasonably be expected to the Lendershave a Material Adverse Effect;
(viviii) any Subsidiary that is a Loan Party may liquidate or dissolve if substantially all of the assets (including any interest in any Equity Interest) of such liquidating or dissolving Loan Party are transferred to a Loan Party that is not liquidating or dissolving; and
(ix) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to consummate the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementTransactions.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than (i) businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date Effective Date after the consummation of execution of this Agreement the Transactions, (ii) businesses similar to the businesses referred to in clause (i) and any business (iii) businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated to the businesses referred to in clauses (i) and (ii).
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year-end to a date other than December 31, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
unless (i) dispositions or sales the Borrower shall have given sixty (60) days’ prior written notice of inventory, used, obsolete or surplus equipment such change to the Administrative Agent and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property the Administration Agent shall have consented to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made change in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the its reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddiscretion.
Appears in 1 contract
Samples: Credit Agreement (Advisory Board Co)
Fundamental Changes and Asset Sales. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (other than Unrestricted Margin Stock) (including pursuant to a Sale/Leaseback Transaction), or all or substantially all any of the Equity Interests (other than Unrestricted Margin Stock) of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the or consolidate with a Borrower or Parent in a transaction in which the such Borrower or Parent, as applicable, is the surviving corporation;
(ii) any Restricted Subsidiary Person (other than Parent and each Borrower) may merge into (i) or consolidate with any Restricted Subsidiary in a transaction in which the Borrower or (ii) one or more surviving entity is such Restricted Subsidiaries Subsidiary (provided that when any such merger, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in the surviving entityentity becoming a Subsidiary Guarantor);
(iii) the Borrower or any Restricted Subsidiary (other than a Borrower) may sell, transfer, lease merge into or otherwise dispose of all or substantially all of its assets to the Borrower or consolidate with any Restricted Subsidiary; provided that if a transferor Person in such a transaction permitted under clauses (xiv), (xv) and (xvii) hereunder in which the surviving entity is not a Loan Party, then the transferee must be a Loan PartySubsidiary;
(iv) the Borrower any Restricted Subsidiary (other than a Borrower) may Dispose of any or all of its assets (upon voluntary liquidation, dissolution or otherwise) to Parent or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))other Loan Party;
(v) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other Dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other Disposition of intellectual property that is, in the reasonable judgment of Parent, no longer economically practicable to maintain or useful in the conduct of the business of Parent and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions to Parent or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) any such Disposition made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 7.04 and (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) Equity Interests of a Loan Party may not be transferred to a Subsidiary that is not such Subsidiary Guarantor, a Loan Party;
(Aviii) the Successor Company discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(ix) leases, subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of Parent and the Restricted Subsidiaries taken as a whole;
(x) Liens permitted by Section 7.02;
(xi) Investments permitted by Section 7.04;
(xii) subject to Section 2.09(c)(iii), dispositions of property as a result of a Casualty Event involving such property or any disposition of real property to a Governmental Authority as a result of a Condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(xv) sales or other Dispositions of non-core assets acquired in any Permitted Acquisition or other Investment; provided that such sales shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations consummated within two years of such Subsidiary Guarantor under the Subsidiary Guaranty acquisition or Investment; and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if (i) the foregoing consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) either (A) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash, or (B) a Borrower, substantially concurrently with the receipt of any non-cash consideration (and in any event within one Business Day), prepays (or cause to be prepaid) the Loans in an amount equal to the amount by which the fair market value of the non-cash consideration exceeds 25% of such consideration, such prepayment to be made in accordance with Section 2.09(c)(iii);
(xvi) any Immaterial Asset Sale;
(xvii) Dispositions of assets that are satisfiednot permitted by any other clause of this Section 7.03; provided that the Disposition Consideration of all assets sold, the Successor Company will succeed totransferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xvii) shall not at the time of and immediately after giving effect to any such transaction exceed $200,000,000 in any fiscal year; and provided, further, that (i) the consideration received for such assets shall be substituted forin an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash;
(xviii) the surrender, waiver or settlement of contractual rights in the ordinary course of business, or the surrender, waiver or settlement of claims and litigation claims (whether or not in the ordinary course of business);
(xix) Dispositions of Equity Interests in any Subsidiary acquired in connection with any a Permitted Acquisition prior to the time of such Subsidiary Guarantor under becoming a Wholly Owned Subsidiary, in each case pursuant to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such person becoming a Subsidiary;
(xx) any Permitted Reorganization; and
(xxi) Dispositions of assets that are not permitted by any other clause of this AgreementSection 7.03; provided that the applicable Borrower shall substantially concurrently (and in any event within one Business Day) apply 100% of the Net Cash Proceeds thereof to prepay (or cause to be prepaid) the Loans in accordance with Section 2.09(c)(iii) (it being understood that such Net Cash Proceeds shall not constitute Reinvestment Funds); and provided, further, that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) no less than 75% thereof (excluding any consideration arising from the assumption of liabilities other than Indebtedness) shall be paid in cash.
(b) The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Parent and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental related or ancillary thereto or that is a similar or complementary thereto or reasonable extension extensions thereof.
(c) The Borrower Parent will not, and nor will not it permit any of the its Restricted Subsidiaries to, sellchange its fiscal year from the basis in effect on the Closing Date; provided, transferhowever, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a saleLoan Parties may, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property upon written notice to the Borrower or a Restricted Subsidiary; provided that Administrative Agent, change their respective fiscal years to any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures fiscal year reasonably acceptable to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business whichAdministrative Agent, in which case, the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Lead Borrower and the Restricted Subsidiaries previously disposed of pursuant Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this clause (xi) during the twelve-month period ending with the month Agreement that are necessary to reflect such change in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodfiscal year.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets, or all or substantially all of the Equity Interests stock of any of its Restricted the Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) any Person Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
, (ii) any Restricted Subsidiary may merge into (i) any Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (surviving entity is a Subsidiary; provided that when a Restricted to the extent either such Subsidiary that is a Loan Party is merging with a Restricted SubsidiaryGuarantor, the Loan Party surviving entity shall be the surviving entity);
a Guarantor, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted to another Subsidiary; provided that if any such sale, lease or other disposition of assets of a transferor in such a transaction is a Loan Guarantor shall be made to another Credit Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
; provided that (viA) the Borrower any assets of such Subsidiary shall be transferred to a Credit Party prior to or as a result of such liquidation or dissolution and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of (B) any such merger involving a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiarywholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 9.4, (v) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in amount at least equal to the fair market value thereof, (vi) Borrower or its Subsidiaries may make Specified Asset Sales provided that, such Specified Asset Sales can be made for Cash or non-Cash consideration until the amount of non-Cash consideration exceeds $10,000,000 in the aggregate; thereafter, such Specified Asset Sales shall be made for at least 66 2/3% in Cash (provided that the limitation with respect to Cash consideration set forth in this Section 9.3(vi) shall not apply to the asset sales described under clause (iv) of the definition of Specified Asset Sales), (vii) Borrower or its Subsidiaries may take any action permitted by Section 9.4 below to the extent constituting an Asset Sale, (viii) subject to Section 9.14, Borrower and its Subsidiaries may make Asset Sales (other than Specified Asset Sales) having an aggregate fair market value not in excess of $20,000,000 in any fiscal year; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company consideration received for each such Asset Sale shall be in an entity organized or existing under amount at least equal to the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, fair market value thereof and (B) the Successor Company shall expressly assume all consideration for each such Asset Sale is at least 66 2/3% in Cash, (ix) any Person may merge into the obligations Borrower or any Subsidiary of the Borrower in connection with a Permitted Acquisition that is permitted under Section 9.4 so long as such Borrower or Subsidiary Guarantor under of the Subsidiary Guaranty and Borrower is the other Loan Documents to which the Subsidiary surviving corporation or, if such transaction involves a Guarantor, such Guarantor is a party pursuant the surviving corporation, and (x) Borrower may reorganize for the purpose of changing its jurisdiction of incorporation to a supplement hereto the State of Delaware or thereto in form reasonably satisfactory the State of Georgia after having provided prior written notice to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary related thereto or and that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any materially change its or its Subsidiary’s material lines of business taken as a whole as of the Restricted Subsidiaries toClosing Date. For the avoidance of doubt, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course type of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of conducted by the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day Closing Date is the franchising of food-service related businesses and the last month before provision of directly related services and products and the start distribution, wholesale and retailing of the applicable Calculation Periodfood and food related products.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, the following shall be permitted:
(i) any Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary Person (other than the Borrower) may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when any such merger involving the Borrower must result in the Borrower as the surviving entity) and any Person that is not a Restricted Loan Party may merge into any other Subsidiary that is not a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity)Party;
(iii) the Borrower may sell, transfer, lease or otherwise dispose of its assets to a Loan Party, any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all its assets to a Loan Party and any Subsidiary that is not a Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower or any Restricted Subsidiary; provided other Subsidiary that if a transferor in such a transaction is a Loan Party, then the transferee must be not a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business, (C) enter into non-exclusive licenses of technology in the ordinary course of business, (D) enter into leases, subleases and non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of Borrower and the Subsidiaries taken as a whole, (E) make any other sales, transfers, leases or dispositions of assets, or any Subsidiary may transfergrants of Exclusive Licenses, sell and/or pledge the book value of which, together with the book value of all other assets of the Borrower and its Subsidiaries previously transferred, leased, sold or disposed of (but excluding any such assets that have been Exclusively Licensed) in reliance upon this clause (E) during any fiscal year of the Borrower, does not exceed an amount equal to 7.5% of Consolidated Total Assets during any fiscal year of the Borrower (determined as of the last day of the most recent fiscal year for which financial statements have been delivered pursuant to Section 5.01(a) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a), the most recent financial statements referred to in Section 3.04(a)(i))); provided that all sales, transfers, leases and other dispositions permitted under this clause (E) shall be made for fair value and for at least 75% cash consideration; provided further that for the purposes of this clause (E), the following consideration shall be deemed to be cash consideration (1) any Permitted Receivables Related Assets under Permitted Receivables Facilities Investments, (2) any consideration arising from the assumption of liabilities other than Indebtedness and (3) any contingent or deferred consideration payable in cash or cash equivalents; provided further that any Exclusive License shall (1) be accretive to Consolidated EBITDA in the Borrower’s reasonable determination and (2) upon consummation of any Material Exclusive License Agreement, be subject to the limitation same terms and conditions under this Agreement in respect of any other Material Exclusive License Agreement; and (F) assign, cancel, abandon or otherwise dispose of immaterial intellectual property that is, in the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries, taken as a whole;
(v) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of non-core assets acquired in a Permitted Acquisition; provided that such sales shall be consummated within two years of the consummation of such Permitted Acquisition; provided, further that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Borrower) and (ii) no less than 75% of such consideration shall be paid in cash; provided that for purposes of this clause (ii), the following consideration shall be deemed to be cash consideration: (A) Permitted Investments, (B) any Restricted consideration arising from the assumption of liabilities other than Indebtedness and (C) any contingent or deferred consideration payable in cash or cash equivalents;
(vi) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(vii) Liens permitted by Section 6.02 (other than by reference to this Section 6.03 or any clause hereof);
(viii) Investments permitted by Section 6.04 (other than by reference to this Section 6.03 or any clause hereof);
(ix) dispositions of property as a result of a casualty event involving such property or any disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(x) dispositions of investments in joint ventures, to the extent required by, or made pursuant to customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements entered into in connection with an Investment permitted hereunder;
(xi) disposition of cash and Permitted Investments in the ordinary course of business as consideration for goods and services or other transactions permitted under or not prohibited by this Agreement;
(xii) settlement or termination of Swap Agreements;
(xiii) any disposition of property in respect of which the fair market value of such property and the consideration payable to the Borrower or any of its Subsidiaries is equal to or less than $1,000,000;
(xiv) the surrender, waiver or settlement of contractual rights in the ordinary course of business, or the surrender, waiver or settlement of claims and litigation claims (whether or not in the ordinary course of business);
(xv) (i) dispositions of Borrower Margin Stock and (ii) dispositions of Equity Interests in any Subsidiary acquired in connection with any a Permitted Acquisition prior to the time of such Subsidiary becoming a wholly-owned Subsidiary, in each case pursuant to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such person becoming a Subsidiary;
(xvi) [Reserved];
(xvii) any Subsidiary that is not a Loan Party may liquidate liquidate, reorganize or dissolve if the Borrower determines in good faith that such liquidation liquidation, reorganization or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
; provided that (vix) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a any such merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, consolidation involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly-owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04 and (y) notwithstanding any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United Statesforegoing, in no event shall any state Loan Party sell, transfer, lease, Exclusively License or commonwealth thereof, the District otherwise dispose of Columbia (in one transaction or in a series of transactions) any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the intellectual property to any Affiliate other than another Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementParty.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental related or ancillary thereto or that is a similar or complementary thereto or reasonable extension extensions thereof.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any change its fiscal year from the basis in effect on the Effective Date; except to conform the fiscal year end of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property Subsidiaries to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination year end of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except thatexcept:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted any such merger involving the Borrower must result in the Borrower as the surviving entity) and any Subsidiary that which is not a Loan Party may merge into another Subsidiary which is merging with not a Restricted Subsidiary, the Loan Party shall be the surviving entity)Party;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted another Subsidiary; provided that if a transferor in such a transaction sale, transfer, lease or disposition is a Loan Party, then the transferee must be a Loan Partyan Investment permitted by Section 6.04(d) or Section 6.04(p);
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject assets pursuant to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount Sale and Leaseback Transactions permitted under Section 6.01(h))6.09;
(v) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, (D) make any Restricted other sales, transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) during any fiscal year of the Borrower, does not exceed 15% of Consolidated Tangible Assets (determined as of the end of the most recently completed fiscal quarter of the Borrower), and (E) sell cash and/or Permitted Investments in the ordinary course of business; and
(vi) any Subsidiary may liquidate or dissolve if (A) the Borrower reasonably determines in good faith that such liquidation or dissolution is in the best corporate interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations proceeds of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory dissolution are transferred to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger Borrower or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementa Subsidiary.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto (it being understood that any travel related or on-line business reasonably related, incidental shall be considered to be such a same or ancillary thereto or that is a reasonable extension thereofsimilar line of business).
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Priceline Com Inc)
Fundamental Changes and Asset Sales. (a) 3. The Borrower Borrowers will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assets, or all or substantially all of assets (including the Equity Interests of any of its Restricted Subsidiaries subsidiaries) (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing:
(i) the Company or any Person Subsidiary may merge into into, consolidate or amalgamate with the Borrower in Company or any Subsidiary; provided, that if the merging, consolidating or amalgamating entity is a transaction in which the Borrower is Loan Party, then the surviving corporationentity of such merger, consolidation or amalgamation shall be or simultaneously become (A) a Domestic Borrower, if the merging, consolidating or amalgamating entity is a Domestic Borrower, (B) a Borrower, if the merging, consolidating or amalgamating entity is a Foreign Borrower, or (C) a Domestic Loan Party, if the merging, consolidating or amalgamating entity is a Subsidiary Guarantor;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower Company or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower Company or any Restricted Subsidiary; provided provided, that if a transferor in such a transaction the disposing entity is a Loan Party, then the transferee must acquiring entity shall be or simultaneously become (A) a Domestic Loan Party, if the disposing entity is a Domestic Loan Party, or (B) a Loan Party, if the disposing entity is a Foreign Borrower.
(iii) the Company and the Subsidiaries may (A) sell inventory in the ordinary course of business, (B) sell worn-out or obsolete assets in the ordinary course of business, (C) grant licenses or sublicenses of intellectual property in the ordinary course of business which do not interfere in any material respect with the ordinary conduct of business of the Company or such Subsidiary, (D) sell, transfer or otherwise dispose of gsdocs.0000000.13 accounts receivable in connection with the compromise, settlement or collection thereof, (E) sell, transfer or otherwise dispose of Cash Equivalent Investments for fair market value, (F) suffer dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Company or such Subsidiary, (G) sell, transfer or otherwise dispose of its assets to the extent such disposition constitutes an Investment permitted by Section 6.04, (H) sell, transfer or otherwise dispose of the following assets to any Subsidiary: (i) Equity Interests in a Foreign Subsidiary or (ii) loan receivables from a Foreign Subsidiary, and (I) make any other sales, transfers, leases or other dispositions; provided, that, in the case of this clause (I), (1) such dispositions are for fair market value and on an arm’s-length basis, (2) the aggregate book value of assets of the Company and the Subsidiaries disposed of in any fiscal year of the Company shall not exceed ten percent (10%) of the Consolidated Tangible Assets of the Company and the Subsidiaries as set forth on the Company’s most recent Financial Statements (as the amount of such Consolidated Tangible Assets may be increased to reflect tangible assets acquired since the date of such Financial Statements in connection with any Permitted Acquisitions), and (3) the aggregate book value of assets of the Company and the Subsidiaries disposed of during the term of this Agreement in reliance upon this clause (I) shall not exceed $100,000,000;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets; provided, including Equity Interests of a Subsidiary, either directly that if such liquidating or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a dissolving Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company a Domestic Guarantor, then its assets shall be an entity organized transferred to another Domestic Loan Party prior to such liquidation or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereofdissolution, (B) the Successor Company a Domestic Borrower, then its assets shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty be transferred to another Domestic Loan Party, and the other Loan Documents its Obligations shall be assigned to which the Subsidiary Guarantor is a party and assumed by another Domestic Borrower pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent, and prior to such liquidation or dissolution, or (C) such Subsidiary Guarantor a Foreign Borrower, then its assets shall have delivered be transferred to another Loan Party, and its Obligations shall be assigned to and assumed by another Borrower pursuant to documentation reasonably satisfactory to the Administrative Agent an officer’s certificate stating that Agent, prior to such merger liquidation or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h)dissolution;
(v) salesany Person may merge into or consolidate or amalgamate with the Company or any Subsidiary in connection with an Acquisition in which the Company or such Subsidiary is the surviving entity or the other Person simultaneously becomes a Domestic Borrower, transfers Foreign Borrower or Subsidiary Guarantor, if and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;as applicable; and
(vi) any Borrower or any Subsidiary may convert from one type of organization into another; provided that (A) if the lapse or abandonment of intellectual property rights in entity so converting is a Loan Party, it shall remain a Loan Party after such conversion (and, if requested by the ordinary course of business whichAdministrative Agent, shall execute an assumption agreement, in the reasonable good faith determination of the Borrower, is not material form and substance satisfactory to the conduct Administrative Agent) and (B) the Company shall deliver 30 days’ prior written notice of such entity conversion to the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection Administrative Agent, together with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination copies of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the proposed new corporate charter, bylaws, operating agreement and/or other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.organizational
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party in a transaction in which the surviving entity is merging with a Restricted Subsidiary, such Loan Party(provided that any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity), and any Subsidiary that is not a Loan Party may merge into another Subsidiary that is not a Loan Party;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all its assets to a Loan Party and any Subsidiary which is not a Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction another Subsidiary which is a Loan Party, then the transferee must be not a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) dispose of obsolete, surplus or worn out property in the ordinary course of business, (C) sell Permitted Investments or marketable securities (determined at the time of acquisition thereof in a manner consistent with the most recent consolidated balance sheet of the Borrower) maintained by the Borrower or any Subsidiary may transferSubsidiary, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount extent such ownership was permitted under Section 6.01(h6.04, or any Investments permitted under Sections 6.04(i) or (j), (D) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business, (E) enter into the Specified Sale and Leaseback Transaction permitted under Section 6.10, (F) enter into leases or subleases of real property, (G) dispose of accounts receivable or other receivables in connection with the collection or compromise thereof in the ordinary course of business, (H) enter into licenses or sublicenses of technology or other intellectual property not interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole, (I) unwind Swap Agreements and (J) make any other sales, transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (J) during any fiscal year of the Borrower, does not exceed ten percent (10%) of Consolidated Total Assets (calculated as of the most recently ended fiscal quarter and determined at the time of such sale, transfer, lease or disposition by reference to the Borrower’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(v) any Restricted Subsidiary that is not a Material Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries in connection with any acquisition permitted under Section 6.04, any Subsidiary may dispose of property and assets, including Equity Interests of a Subsidiary, either directly merge into or through a merger consolidate with any other Person or consolidation, permit any other Person to the extent permitted by clause (c) of this Sectionmerge into or consolidate with it; and
(vii) so long as no Default exists the Borrower or would result therefromany Subsidiary may dispose of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements. provided that any such merger or consolidation involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that wholly-owned Subsidiary (iwithout giving effect to directors’ or similar qualifying shares) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation (any such Person, the “Successor Company”) consolidations shall not be permitted unless it is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementalso permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses the Related Line of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofBusiness.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Qlogic Corp)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one any wholly-owned Subsidiary in a transaction in which the surviving entity is the Borrower or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted such wholly-owned Subsidiary, the Loan Party shall be the surviving entity)as applicable;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted wholly-owned Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (subject to D) during any fiscal year of the limitation that the Attributable Receivables Indebtedness thereunder shall Borrower, does not exceed an aggregate amount permitted under 10% of Consolidated Total Assets, calculated as of the last day of the most recently completed fiscal year of the Borrower for which financial statements shall have been delivered pursuant to Section 6.01(h5.01(a));; and
(v) any Restricted non-material Subsidiary may liquidate or dissolve or merge with or into the Borrower or another wholly-owned Subsidiary if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Loan Agreement (Nv Energy, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all of its assetsassets (including pursuant to a Sale/Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) (x) any Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
corporation and (iiy) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transferliquidate, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate dissolve or dissolve if wind up its affairs so long as the Borrower determines in good faith that such liquidation liquidation, dissolution or dissolution winding up is in the best interests interest of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders;
(viii) any (x) Person (other than the Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is such Restricted Subsidiary (provided that any such merger or consolidation involving a Subsidiary Guarantor must result in the surviving entity remaining or becoming a Subsidiary Guarantor) and any (y) non-Loan Party may merge into or consolidate with the Borrower or any Subsidiary of the Borrower (provided that any such merger or consolidation involving a Subsidiary Guarantor must result in the surviving entity remaining or becoming a Subsidiary Guarantor);
(iii) any Restricted Subsidiary (other than the Borrower) may merge into or consolidate with any Person in a transaction permitted under clauses (xi) and (xiii) hereunder in which the surviving entity is not a Subsidiary;
(iv) any Restricted Subsidiary (other than the Borrower) may Dispose of any or all of its assets (upon voluntary liquidation, dissolution or otherwise) to the Borrower or any other Restricted Subsidiary (except that a Loan Party may only Dispose of its assets under this clause (a)(iv) to the Borrower or another Loan Party);
(v) sales, transfers and other Dispositions of inventory in the ordinary course of business, used, worn out, obsolete or surplus property and cash and Cash Equivalents in the ordinary course of business, and the assignment, cancellation, abandonment or other Disposition of Intellectual Property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or necessary in the conduct of the business of the Borrower and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, taken as a whole;
(vi) (x) Dispositions (including Equity Interests of a Subsidiary, either directly Subsidiaries) or through a merger or consolidation, exclusive licenses to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists Borrower or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) any such Disposition or exclusive license made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 7.04 and (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) Equity Interests of a Loan Party may not be transferred to a Subsidiary that is not such Subsidiary Guarantor, a Loan Party or (Ay) Dispositions by the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia Borrower or any territory thereofRestricted Subsidiary to any Subsidiary that is not a Restricted Subsidiary in an amount not to exceed $10,000,00025,000,000 per fiscal year;
(vii) (x) Dispositions or the discount or sale, (B) in each case without recourse, of receivables arising in the Successor Company shall expressly assume all the obligations ordinary course of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentbusiness, and (Cy) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(viii) leases, subleases, licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of the Borrower and the Restricted Subsidiaries taken as a whole;
(ix) subject to Section 2.08(b)(ii), dispositions of property as a result of a Casualty Event involving such property or any disposition of real property to a Governmental Authority as a result of a Condemnation of such real property;
(x) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(xi) Dispositions of assets or Equity Interests; provided that (i) the consideration received for such assets or Equity Interests shall be in an amount at least equal to the fair market value thereof (determined by a Responsible Officer or, for any Disposition in reliance on this Section 7.03(a)(xi) of assets in one transaction or a series of related transactions with Net Cash Proceeds in excess of $5,000,00010,000,000, in good faith by the Board of Directors of the Borrower) and no less than 75% thereof shall be paid in cash or Cash Equivalents, (ii) the Net Cash Proceeds of such Dispositions do not exceed an aggregate amount of $200,000,000 calculated from and after the Amendment No. 5. Effective Date, (iii) such Subsidiary Guarantor Dispositions are consummated within eighteentwenty-four (1824) months following the ClosingAmendment No. 5 Effective Date and (iv) no Event of Default shall have delivered occurred or be continuing or result therefrom;
(xii) the surrender, waiver or settlement of contractual rights or claims and litigation claims in the ordinary course of business;
(xiii) Dispositions of Equity Interests in any Subsidiary acquired in connection with a Permitted Acquisition, in each case pursuant to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such Person becoming a Subsidiary;
(xiv) Transactions permitted under Section 7.02, 7.04 and 7.06, in each case, solely to the Administrative Agent extent constituting Dispositions hereunder;
(xv) Permitted Restructuring Transactions;
(xvi) other Dispositions of assets or Equity Interests; provided that (i) the consideration received for such assets or Equity Interests shall be in an officer’s certificate stating that such merger or consolidation and such supplement amount at least equal to the fair market value thereof (determined by a Responsible Officer or, for any Disposition in reliance on this Section 7.03(a)(xvi) of assets in one transaction or a series of related transactions with Net Cash Proceeds in excess of $5,000,00010,000,000, in good faith by the Board of Directors of the Borrower) and no less than 75% thereof shall be paid in cash or Cash Equivalents, (ii) the Net Cash Proceeds of such Dispositions do not exceed an aggregate amount of $10,000,00020,000,000 in any calendar year and (iii) no Event of Default shall have occurred or be continuing or result therefrom; and
(xvii) Dispositions of fixed or capital assets and related property in connection with Indebtedness permitted under Section 7.01 for the purpose of financing such fixed or capital assets and related property or a lease of such assets by the Borrower or any Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementas a lessee or debtor.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, to engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries (including (i) the Acquired Business and its Subsidiaries, after giving effect to the consummation of the Acquisition) on the date of execution of this Agreement and any business (ii) the ESI Acquired Business and its Subsidiaries, after giving effect to the consummation of the ESI Acquisition) on the Amendment No. 5 Effective Date and businesses reasonably related, incidental complementary, incidental, or ancillary thereto or that is a similar or complementary thereto or reasonable extension extensions thereof.
(c) The Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sellchange its fiscal year from the basis in effect on the Closing Date; provided, transferhowever, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in Borrower may permit the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property ESI Acquired Business to change its fiscal year to align with the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business fiscal year of the Borrower as in effect on the Amendment No. 5 Effective Date; provided further that the Loan Parties and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromisemay, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition upon written notice to the dispositions permitted by Administrative Agent, change their respective fiscal years to any other fiscal year reasonably acceptable to the other clauses Administrative Agent, in which case, at the request of this Section 6.03(c)the Administrative Agent, leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this clause (xi) during the twelve-month period ending with the month Agreement that are necessary to reflect such change in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodfiscal year.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into into, amalgamate with or consolidate with any other Person, or permit any other Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate liquidate, dissolve or dissolvewind-up, except that:
(i) any Person (other than any Borrower) may merge into the Borrower into, amalgamate with or consolidate with Parent in a transaction in which the Borrower Parent is the surviving corporation;
(ii) (x) any Person (other than Parent, any Borrower or any Intermediate Parent Entity) may merge into, amalgamate with or consolidate with any Restricted Subsidiary may merge into (i) of Parent in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that surviving entity is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be (y) any Person (including any Intermediate Parent Entity) may merge into, amalgamate with or consolidate with any other Intermediate Parent Entity in a transaction in which the surviving entity)entity is an Intermediate Parent Entity and (z) any Borrower may merge into, amalgamate with or consolidate with Parent, any Intermediate Parent Entity or any other Restricted Subsidiary so long as such Borrower is the surviving entity or the surviving entity assumes all the obligations of such Borrower under this Agreement and the other Loan Documents and the successor Borrower is organized in (x) the same jurisdiction as such Borrower, (y) the same jurisdiction as a co-Borrower on the same Class of Loan or (z) a jurisdiction reasonably agreed to by the Administrative Agent and each materially and adversely affected Lender;
(iii) the any Restricted Subsidiary (other than any Borrower or any Restricted Subsidiary Intermediate Parent Entity) may sellmerge into, transfer, lease amalgamate with or otherwise dispose of all or substantially all of its assets to the Borrower or consolidate with any Restricted Subsidiary; provided that if a transferor Person in such a transaction permitted under clauses (xv), (xix) and (xx) hereunder in which the surviving entity is not a Loan Party, then the transferee must be a Loan PartySubsidiary;
(iv) the (x) any Restricted Subsidiary (other than any Borrower or any Intermediate Parent Entity) may dispose of all or all of its assets (upon voluntary liquidation, dissolution, winding-up or otherwise) to Parent or any other Restricted Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation of Parent; provided that the Attributable Receivables Indebtedness thereunder foregoing shall not exceed an aggregate amount permitted under Section 6.01(h))permit the voluntary liquidation, dissolution of winding up of any Borrower and (y) any Intermediate Parent Entity may dispose of any or all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Intermediate Parent Entity or to Parent;
(v) any Restricted Subsidiary (other than any Borrower) may liquidate liquidate, dissolve or dissolve wind-up if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other disposition of intellectual property that is, in the reasonable judgment of Parent, no longer economically practicable to maintain or useful in the conduct of the business of Parent and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions (or would result therefrom, a Subsidiary Guarantor may merge any license or consolidate with sublicense of intellectual property) to Parent or any other Person that is not a Restricted Subsidiary; provided that any such Disposition (ior any license or sublicense of intellectual property) such made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 6.04;
(ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (Aviii) the Successor Company discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(ix) leases, subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of Parent and the Restricted Subsidiaries taken as a whole;
(x) Liens incurred in compliance with Section 6.02;
(xi) Investments permitted by Section 6.04;
(xii) subject to Section 2.11(c)(1), dispositions of property as a result of a casualty event involving such property or any disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that the consideration received shall be in an entity organized amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Parent);
(xv) sales or existing under the laws other Dispositions of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company non-core assets acquired in a Permitted Acquisition; provided that such sales shall expressly assume all the obligations be consummated within 360 days of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this AgreementPermitted Acquisition; provided, further, that if (i) the foregoing consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Parent) and (ii) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (ii), Parent shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of Parent and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed $10,000,000 for each such Disposition);
(xvi) any Immaterial Asset Sale;
(xvii) any lease or sublease by Endo of a portion of its interest in its headquarters located in Malvern, Pennsylvania;
(xviii) Parent or any Restricted Subsidiary may transfer, sell and/or pledge Receivables and Permitted Receivables Facility Assets under Permitted Receivables Facilities;
(xix) Dispositions of assets that are satisfiednot permitted by any other clause of this Section 6.03; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xix) shall not at the time of and immediately after giving effect to any such transaction exceed in any fiscal year 15% of Consolidated Total Assets at the end of the immediately preceding fiscal year of Parent;
(xx) Dispositions of assets (but not Equity Interests in any Restricted Subsidiary unless such Restricted Subsidiary is not a Borrower (or a direct or indirect holding company thereof)) that are not permitted by any other clause of this Section 6.03; provided that (x) the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xx) shall not at the time of and immediately after giving effect to any such transaction exceed in the aggregate for all Dispositions effected pursuant to this clause (xx) (including the Disposition being made) 30% of Consolidated Total Assets at the end of the immediately preceding fiscal year of Parent, (y) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Parent) and (z) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (z), Parent shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of Parent and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed, in the aggregate for all such Dispositions, the Successor Company will succeed togreater of (1) $100,000,000 and (2) 1.5% of Consolidated Total Assets as of the end of the most recent fiscal quarter of Parent for which Financials have been delivered (or, and be substituted forprior to the first delivery of any such financial statements, as set forth in Parent’s consolidated financial statements filed with the SEC));
(xxi) the issuance of Equity Interests by a Restricted Subsidiary that represents all or a portion of the consideration paid by Parent or a Restricted Subsidiary in connection with any Investment permitted by Section 6.04, including in connection with the formation of a joint venture with a Person other than a Restricted Subsidiary;
(xxii) Dispositions of Equity Interests (I) deemed to occur upon the exercise of stock options, warrants or other equity derivatives or settlement of convertible securities if such Subsidiary Guarantor under this AgreementEquity Interests represent (i) a portion of the exercise price thereof or (ii) withholding incurred in connection with such exercise or (II) upon the exercise of any Permitted Warrant; and
(xxiii) Dispositions of the Equity Interests of, or the assets or securities of, Unrestricted Subsidiaries.
(b) The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Parent and its Restricted Subsidiaries on the date of execution of this Agreement Closing Date and any business businesses reasonably related, incidental or ancillary related thereto or that is a similar or complementary thereto or reasonable extension thereofextensions thereof (including, but not limited to the business of diagnostics, medical devices, delivery technologies and biotechnology).
(c) The Borrower will not, and Parent will not permit any of change its fiscal year from the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property basis applicable to Parent prior to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodClosing Date.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into into, amalgamate with or consolidate with any other Person, or permit any other Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate liquidate, dissolve or dissolvewind-up, except that:
(i) any Person (other than any Borrower) may merge into the Borrower into, amalgamate with or consolidate with Parent in a transaction in which the Borrower Parent is the surviving corporation;
(ii) (x) any Person (other than Parent, any Borrower or any Intermediate Parent Entity) may merge into, amalgamate with or consolidate with any Restricted Subsidiary may merge into (i) of Parent in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that surviving entity is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be (y) any Person (including any Intermediate Parent Entity) may merge into, amalgamate with or consolidate with any other Intermediate Parent Entity in a transaction in which the surviving entity)entity is an Intermediate Parent Entity and (z) any Borrower may merge into, amalgamate with or consolidate with Parent, any Intermediate Parent Entity or any other Restricted Subsidiary so long as such Borrower is the surviving entity or the surviving entity assumes all the obligations of such Borrower under this Agreement and the other Loan Documents and the successor Borrower is organized in (x) the same jurisdiction as such Borrower, (y) the same jurisdiction as a co-Borrower on the same Class of Loan or (z) a jurisdiction reasonably agreed to by the Administrative Agent and each materially and adversely affected Lender;
(iii) the any Restricted Subsidiary (other than any Borrower or any Intermediate Parent Entity) may merge into, amalgamate with or consolidate with any Person in a transaction permitted under clauses (xv), (xix) and (xx) hereunder in which the surviving entity is not a Subsidiary;
(iv) (x) any Restricted Subsidiary (other than any Borrower or any Intermediate Parent Entity) may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding-up or otherwise) to the Borrower Parent or any other Restricted SubsidiarySubsidiary of Parent; provided that if a transferor in (i) the foregoing shall not permit the voluntary liquidation, dissolution of winding up of any Borrower and (ii) any such a transaction is Disposition made by a Loan Party, then the transferee must be Party to a Restricted Subsidiary that is not a Loan Party;
Party shall be made in compliance with Section 6.04 and (ivy) the Borrower any Intermediate Parent Entity may dispose of any or all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject other Intermediate Parent Entity or to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))Parent;
(v) any Restricted Subsidiary (other than any Borrower) may liquidate liquidate, dissolve or dissolve wind-up if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other disposition of intellectual property that is, in the reasonable judgment of Parent, no longer economically practicable to maintain or useful in the conduct of the business of Parent and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions (or would result therefrom, a Subsidiary Guarantor may merge any license or consolidate with sublicense of intellectual property) to Parent or any other Person that is not a Restricted Subsidiary; provided that any such Disposition (ior any license or sublicense of intellectual property) such made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 6.04;
(ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (Aviii) the Successor Company discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(ix) leases, subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of Parent and the Restricted Subsidiaries taken as a whole;
(x) Liens incurred in compliance with Section 6.02;
(xi) Investments permitted by Section 6.04;
(xii) subject to Section 2.11(c)(1), dispositions of property as a result of a casualty event involving such property or any disposition of real property to a Governmental Authority as a result of a condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that the consideration received shall be in an entity organized amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Parent);
(xv) sales or existing under the laws other Dispositions of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company non-core assets acquired in a Permitted Acquisition; provided that such sales shall expressly assume all the obligations be consummated within 360 days of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this AgreementPermitted Acquisition; provided, further, that if (i) the foregoing consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Parent) and (ii) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (ii), Parent shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of Parent and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed $10,000,000 for each such Disposition);
(xvi) any Immaterial Asset Sale;
(xvii) any lease or sublease by Endo of a portion of its interest in its headquarters located in Malvern, Pennsylvania;
(xviii) Parent or any Restricted Subsidiary may transfer, sell and/or pledge Receivables and Permitted Receivables Facility Assets under Permitted Receivables Facilities;
(xix) Dispositions of assets that are satisfiednot permitted by any other clause of this Section 6.03; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xix) shall not at the time of and immediately after giving effect to any such transaction exceed in any fiscal year 15% of Consolidated Total Assets at the end of the immediately preceding fiscal year of Parent;
(xx) Dispositions of assets (but not Equity Interests in any Restricted Subsidiary unless such Restricted Subsidiary is not a Borrower (or a direct or indirect holding company thereof)) that are not permitted by any other clause of this Section 6.03; provided that (x) the Disposition Consideration of all assets sold, transferred, leased or otherwise disposed of, and of all assets Exclusively Licensed in reliance on this clause (xx) shall not at the time of and immediately after giving effect to any such transaction exceed in the aggregate for all Dispositions effected pursuant to this clause (xx) (including the Disposition being made) 30% of Consolidated Total Assets at the end of the immediately preceding fiscal year of Parent, (y) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Parent) and (z) no less than 75% of the consideration received for such assets shall be paid in cash or Permitted Investments (provided that, for purposes of satisfying the requirements of this clause (z), Parent shall be permitted to designate, pursuant to a certificate executed by a Financial Officer of Parent and delivered to the Administrative Agent, non-cash consideration received for any such Disposition as cash consideration in an amount not to exceed, in the aggregate for all such Dispositions, the Successor Company will succeed togreater of (1) $100,000,000 and (2) 1.5% of Consolidated Total Assets as of the end of the most recent fiscal quarter of Parent for which Financials have been delivered (or, and be substituted forprior to the first delivery of any such financial statements, as set forth in Parent’s consolidated financial statements filed with the SEC));
(xxi) the issuance of Equity Interests by a Restricted Subsidiary that represents all or a portion of the consideration paid by Parent or a Restricted Subsidiary in connection with any Investment permitted by Section 6.04, including in connection with the formation of a joint venture with a Person other than a Restricted Subsidiary;
(xxii) Dispositions of Equity Interests (I) deemed to occur upon the exercise of stock options, warrants or other equity derivatives or settlement of convertible securities if such Subsidiary Guarantor under this AgreementEquity Interests represent (i) a portion of the exercise price thereof or (ii) withholding incurred in connection with such exercise or (II) upon the exercise of any Permitted Warrant; and
(xxiii) Dispositions of the Equity Interests of, or the assets or securities of, Unrestricted Subsidiaries.
(b) The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Parent and its Restricted Subsidiaries on the date of execution of this Agreement Restatement Effective Date and any business businesses reasonably related, incidental or ancillary related thereto or that is a similar or complementary thereto or reasonable extension thereofextensions thereof (including, but not limited to the business of diagnostics, medical devices, delivery technologies and biotechnology).
(c) The Borrower will not, and Parent will not permit any of change its fiscal year from the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property basis applicable to Parent prior to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodRestatement Effective Date.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Endo International PLC)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellconsummate a Division as the Dividing Person, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
, (x) the Borrower or any Subsidiary may sell Receivables under (i) Permitted Receivables Facilities (subject to the limitation set forth in Section 6.01(c)) and (ii) A/R Purchase Programs; and (y) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing: any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) ; any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iii) the Borrower or ; any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party; the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, then (B) sell or lease storage or pipeline capacity in the transferee must be ordinary course of business, (C) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (D) enter into licenses of technology in the ordinary course of business, and (E) in addition to clauses (A) through (D) above, make any other sales, transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (E) at any time after the Restatement Effective Date, does not exceed $150,000,000; any Subsidiary that is not a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
; any Subsidiary that is not a Loan Party may merge into any Subsidiary (vi) provided that any such merger involving a Subsidiary that is a Loan Party must result in such Loan Party being the surviving entity); the Borrower and the Restricted Subsidiaries may dispose engage in any transactions constituting Restricted Payments to the extent permitted under Section 6.07 and Investments to the extent permitted under Section 6.04; and any Subsidiary may (A) Dispose of property investments in cash and assetsPermitted Investments in the ordinary course of business, including Equity Interests (B) effect Dispositions in connection with any theft, loss, physical destruction or damage, taking or similar event with respect to any of a Subsidiarytheir respective properties; and (C) effect the write-off of good will or other intangibles in the ordinary course of business. Upon the occurrence and during the continuance of an Event of Default, either directly or through a merger or consolidationthe Administrative Agent, at the request of the Required Lenders, shall by notice to the Borrower direct the Borrower to cause any Receivables Entity to exercise any voluntary option available to such Receivables Entity under the applicable Permitted Receivables Facility to terminate such Permitted Receivables Facility and the Borrower shall, upon receipt of such direction, cause such Receivables Entity to exercise such option and cause the Receivables Entity to, to the extent permitted by clause (c) required thereunder in connection with the exercise of this Section; and
(vii) so long as no Default exists such option, repurchase all purchase interests in any Receivables or would result therefromtake such other actions, a Subsidiary Guarantor may merge or consolidate in each case, in accordance with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor the terms of the Permitted Receivables Facility Document. The Administrative Agent shall be provide concurrent notice to the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing administrative agent under the laws applicable Permitted Receivables Facility of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have direction delivered to the Borrower pursuant to the foregoing sentence (provided that the Administrative Agent an officer’s certificate stating that shall not be liable to such merger administrative agent or consolidation and any securitization lender or purchaser for failure to provide such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) notice). The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) related thereto. The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodRestatement Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of the Company and its assetsSubsidiaries (taken as a whole), (including pursuant to a Sale and Leaseback Transaction), or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person (including any Subsidiary that is not a Loan Party) may merge into the Borrower Company or a Subsidiary in a transaction in which the Borrower Company or such Subsidiary is the surviving corporationcorporation (provided that any such merger involving the Company must result in the Company as the surviving entity);
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Company must result in the Company as the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower Company or any Restricted another Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;and
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall is not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary a Loan Party may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Company and its Restricted Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto. Without the prior written consent of the Administrative Agent, other than Xxxxxx National Flood Insurance Company, neither the Company nor any Subsidiary may engage in any business reasonably relatedin the nature of an insurance company, incidental in which the Company or ancillary thereto or that is a reasonable extension thereofsuch Subsidiary assumes the risk as an insurer.
(c) The Borrower Company will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Brown & Brown Inc)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, the following shall be permitted:
(i) any Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary Person (other than the Borrower) may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when any such merger involving the Borrower must result in the Borrower as the surviving entity) and any Person that is not a Restricted Loan Party may merge into any other Subsidiary that is not a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity)Party;
(iii) the Borrower may sell, transfer, lease or otherwise dispose of its assets to a Loan Party, any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all its assets to a Loan Party and any Subsidiary that is not a Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower or any Restricted Subsidiary; provided other Subsidiary that if a transferor in such a transaction is a Loan Party, then the transferee must be not a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business, (C) enter into licenses of technology in the ordinary course of business, (D) enter into leases, subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of Borrower and the Subsidiaries taken as a whole, (E) make any other sales, transfers, leases or dispositions of assets, or any grants of Exclusive Licenses, the book value of which, together with the book value of all other assets of the Borrower and its Subsidiaries previously sold, transferred, leased or disposed of or Exclusively Licensed in reliance upon this clause (E) during any fiscal year of the Borrower, does not exceed 7.5% of Consolidated Total Assets (determined as of the last day of the most recent fiscal quarter for which financial statements are available (or, prior to such financial statements being available, the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a)), provided, further that 75% of the consideration received for such assets shall be paid in cash; provided that for purposes of this clause (E), the following consideration shall be deemed to be cash consideration: (1) any securities, notes or other obligations received by the Borrower or any Subsidiary may transferthat are converted within 180 days into cash or cash equivalents, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject 2) any consideration arising from the assumption of liabilities other than Indebtedness, and (3) any contingent or deferred consideration payable in cash or cash equivalents, and (F) assign, cancel, abandon or otherwise dispose of intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the limitation that conduct of the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))business of the Borrower and the Subsidiaries, taken as a whole;
(v) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of non-core assets acquired in a Permitted Acquisition; provided that such sales shall be consummated within two years of the consummation of such Permitted Acquisition; provided, further that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Borrower) and (ii) no less than 75% of such consideration shall be paid in cash; provided that for purposes of this clause (ii), the following consideration shall be deemed to be cash consideration: (A) any Restricted securities, notes or other obligations received by the Borrower or any Subsidiary that are converted within 180 days into cash or cash equivalents, (B) any consideration arising from the assumption of liabilities other than Indebtedness, and (C) any contingent or deferred consideration payable in cash or cash equivalents); and
(vi) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the LendersBorrower;
(vivii) the Borrower discount or sale, in each case without recourse and in the Restricted Subsidiaries may dispose ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(viii) Liens permitted by Section 6.02;
(ix) Investments permitted by Section 6.04;
(x) dispositions of property and assets, including Equity Interests as a result of a Subsidiary, either directly casualty event involving such property or through any disposition of real property to a merger or consolidationGovernmental Authority as a result of a condemnation of such real property;
(xi) dispositions of investments in joint ventures, to the extent permitted by clause required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(cxii) disposition of this Sectioncash and Permitted Investments;
(xiii) settlement or termination of Swap Agreements;
(xiv) any disposition of property in respect of which the fair market value of such property and the consideration payable to the Borrower or any of its Subsidiaries is equal to or less than $5,000,000;
(xv) the surrender, waiver or settlement of contractual rights in the ordinary course of business, or the surrender, waiver or settlement of claims and litigation claims (whether or not in the ordinary course of business);
(xvi) dispositions of Equity Interests in any Subsidiary acquired in connection with any a Permitted Acquisition prior to the time of such Subsidiary becoming a wholly owned subsidiary, in each case pursuant to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such person becoming a Subsidiary; and
(viixvii) so long as no Default exists sales, transfers, Exclusive Licenses, or would result therefrom, other dispositions of intellectual property (other than any intellectual property relating to XTANDI and enzalutamide) owned by a Subsidiary Guarantor may merge Loan Party to a Specified Foreign Subsidiary; provided that any such merger or consolidate with any other consolidation involving a Person that is not a Restricted Subsidiary; provided that (i) such wholly-owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation (any such Person, the “Successor Company”) shall not be permitted unless it is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementalso permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental related or ancillary thereto or that is a similar or complementary thereto or reasonable extension extensions thereof.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year from the basis in effect on the Effective Date, transfer, lease or otherwise dispose except to conform the fiscal year-end of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property Medivation Europe Limited to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination December 31st year-end of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Samples: Credit Agreement (Medivation, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
, (1) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
, (ii) any Restricted Subsidiary Subsidiary/Person may merge into (i) any Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is a Subsidiary (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (including the stock of another entity) to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then to another Subsidiary (as the transferee must be a Loan Party;
case may be) and (iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of ; provided that any such merger involving a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation shall not be permitted unless also permitted by Section 6.04 and (any such Person2) for the avoidance of doubt, the “Successor Company”) is not such Subsidiary GuarantorBorrower and its Subsidiaries may sell inventory and excess, (A) damaged, obsolete or worn out assets, in each case in the Successor Company shall be an entity organized or existing under the laws ordinary course of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementbusiness.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business businesses other than primarily in those businesses of the type now conducted by the Borrower them and its Restricted Subsidiaries on the date of execution of this Agreement in related businesses and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property those businesses permitted to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable acquired pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period6.04.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(iia) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted any such merger involving the Borrower must result in the Borrower as the surviving entity) and (b) any Subsidiary that is not a Loan Party may merge into any other Subsidiary that is merging with not a Restricted Subsidiary, the Loan Party shall be the surviving entity)Party;
(iiia) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all its assets to a Loan Party and (b) any Subsidiary that is not a Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower or any Restricted Subsidiary; provided other Subsidiary that if a transferor in such a transaction is a Loan Party, then the transferee must be not a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of damaged, obsolete, surplus or used property and equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related transfers, leases or dispositions of property, the book value of which, together with the book value of all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) (i) during any fiscal year of the Borrower, does not exceed 10% of the Borrower’s Consolidated Tangible Assets under Permitted Receivables Facilities (subject determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or Section 5.01(b) (or, prior to the limitation that delivery of any such financial statements, the Attributable Receivables Indebtedness thereunder shall last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a)) at the time of such transaction and (ii) during the term of this Agreement does not exceed an aggregate amount permitted under Section 6.01(h))20% of the Borrower’s Consolidated Tangible Assets as so determined at the time of such transaction;
(v) the Borrower and its Subsidiaries may dispose of real property or equipment to the extent that equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(vi) the Borrower and its Subsidiaries may dispose of defaulted accounts receivable for collection purposes for fair value; and
(vii) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year from the basis in effect on the Effective Date without the consent of the Administrative Agent, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property which consent shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodunreasonably withheld.
Appears in 1 contract
Samples: Credit Agreement (Angiodynamics Inc)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellconsummate a Division as the Dividing Person, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, (x) any Subsidiary of the Borrower may sell Receivables under (i) Permitted Receivables Facilities (subject to the limitation set forth in Section 6.01(c)) and (ii) A/R Purchase Programs; (y) [intentionally omitted]; and (z) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) another Subsidiary of the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity)Borrower;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all Dispose of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then another Subsidiary of the transferee must be a Loan PartyBorrower;
(iv) the Borrower’s Subsidiaries may:
(A) Dispose of inventory in the ordinary course of business,
(B) Dispose of storage or pipeline capacity in the ordinary course of business,
(C) effect sales, trade-ins or other Dispositions of used, obsolete, worn-out or surplus equipment for value in the ordinary course of business consistent with past practice,
(D) enter into licenses of technology in the ordinary course of business,
(E) Dispose of Investments in cash and Permitted Investments in the ordinary course of business,
(F) enter into leases, subleases, licenses or sublicenses of real or personal property granted by any Subsidiary of the Borrower to others in the ordinary course of business not interfering in any material respect with the business of the Borrower or any Subsidiary may transferof its Subsidiaries,
(G) effect Dispositions in connection with any theft, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities loss, physical destruction or damage, taking or similar event with respect to any of their respective properties; and
(subject to H) effect the limitation that write-off of good will or other intangibles in the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))ordinary course of business;
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, engage in any transactions constituting Restricted Payments to the extent permitted by clause (c) of this Sectionunder Section 6.07 and Investments to the extent permitted under Section 6.04; and
(vii) so long as no Default exists or would result therefrom, a any Subsidiary Guarantor of the Borrower may merge into or consolidated with any other Person, or permit any other Person to merge into or consolidate with any other Person that is not it, or consummate a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be Division as the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Dividing Person, or the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia Borrower or any territory thereof, of its Subsidiaries may Dispose of its assets (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party including pursuant to a supplement hereto Sale and Leaseback Transaction or thereto any of the Equity Interests of any of its Subsidiaries (in form reasonably satisfactory each case whether now owned or hereafter acquired)), provided that after giving effect to such transaction or series of transactions the Borrower shall be in compliance on a pro forma basis with the financial covenant contained in Section 6.11(a) recalculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements were required to be delivered pursuant to Section 5.01, as if such transaction or series of transactions had occurred on the first day of the relevant period for testing such compliance, and, to the Administrative Agent, and (C) extent any such Subsidiary Guarantor transaction have value greater than or equal to $250,000,000 the Borrower shall have delivered to the Administrative Agent an officer’s for distribution to each of the Lenders a certificate stating of a Financial Officer evidencing the continued compliance with the terms and conditions of this Agreement and the other Loan Documents in form and substance reasonably acceptable to the Administrative Agent; provided that any such merger or consolidation and or Division involving a Person that is not a wholly-owned Subsidiary immediately prior to such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and merger or consolidation or Division shall not be substituted for, such Subsidiary Guarantor under this Agreementpermitted unless it is also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assets, (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower merge or amalgamate with any other Subsidiary, (ii) one merge into or more Restricted Subsidiaries amalgamate with a Loan Party in a transaction in which the surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Company must result in the Company as the surviving entity)) or (iii) sell, transfer, lease or otherwise dispose of its assets to a Loan Party;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower Company or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Facility Assets and Permitted Receivables Related Assets under Permitted Receivables Facilities Facilities;
(subject v) the Company and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, leases, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any other sales, transfers, leases or dispositions that, together with all other property of the Company and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (D) during any fiscal year of the Company, does not exceed 10% of Consolidated Total Assets (determined by reference to the limitation that Company’s most recently delivered Financials or, if prior to the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under date of delivery of the first Financials to be delivered pursuant hereto, the most recent financial statements referred to in Section 6.01(h3.04(a));
(vvi) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous after giving effect to the Lenderssuch transaction, no Default shall exist;
(vivii) the Borrower Company and the Restricted its Subsidiaries may dispose make Consolidated Capital Expenditures in the ordinary course of property their respective businesses;
(viii) the Company and assetsits Subsidiaries may make advances, including Equity Interests investments and loans in and to third parties;
(ix) the Company and its Subsidiaries may make Restricted Payments;
(x) the Company and its Subsidiaries may make dispositions of a Subsidiaryassets received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, either directly or through a merger or consolidationand other disputes with, to customers and suppliers arising in the extent permitted by clause (c) ordinary course of this Sectionbusiness; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (Axi) the Successor Company shall be an entity organized and its Subsidiaries may lease (as lessor) real or existing under personal property not interfering with the laws ordinary course of business of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto otherwise in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply compliance with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than (i) businesses of the type conducted by the Borrower Company and its Restricted Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto, (ii) reasonable extensions thereof and (iii) any business reasonably relatedother manufacturing business, incidental or ancillary thereto or that is a including, without limitation, the distribution and/or resale of manufactured products and other reasonable extension thereofextensions of the manufacturing business.
(c) The Borrower will not, and Company will not permit any of change its fiscal year from the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that basis in effect on the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodRestatement Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
Fundamental Changes and Asset Sales. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease lease, Exclusively License or otherwise dispose Dispose of (in one transaction or in a series of transactions) all any of its assetsassets (other than Unrestricted Margin Stock) (including pursuant to a Sale/Leaseback Transaction), or all or substantially all any of the Equity Interests (other than Unrestricted Margin Stock) of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the or consolidate with a Borrower or Parent in a transaction in which the such Borrower or Parent, as applicable, is the surviving corporation;
(ii) any Restricted Subsidiary Person (other than Parent and each Borrower) may merge into (i) or consolidate with any Restricted Subsidiary in a transaction in which the Borrower or (ii) one or more surviving entity is such Restricted Subsidiaries Subsidiary (provided that when any such merger, consolidation or liquidation involving a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be Guarantor must result in the surviving entityentity becoming a Subsidiary Guarantor);
(iii) the Borrower or any Restricted Subsidiary (other than a Borrower) may sell, transfer, lease merge into or otherwise dispose of all or substantially all of its assets to the Borrower or consolidate with any Restricted Subsidiary; provided that if a transferor Person in such a transaction permitted under clauses (xiv), (xv) and (xvii) hereunder in which the surviving entity is not a Loan Party, then the transferee must be a Loan PartySubsidiary;
(iv) the Borrower any Restricted Subsidiary (other than a Borrower) may Dispose of any or all of its assets (upon voluntary liquidation, dissolution or otherwise) to Parent or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h))other Loan Party;
(v) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve if the Borrower Parent determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Parent and is not materially disadvantageous to the Lenders;
(vi) sales, transfers and other Dispositions of inventory, used, worn out, obsolete or surplus property, cash and Permitted Investments in the Borrower ordinary course of business and the assignment, cancellation, abandonment or other Disposition of intellectual property that is, in the reasonable judgment of Parent, no longer economically practicable to maintain or useful in the conduct of the business of Parent and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, including Equity Interests of taken as a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; andwhole;
(vii) so long as no Default exists Dispositions to Parent or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Disposition made by a Loan Documents Party to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.067.04 and (ii) Equity Interests of a Loan Party may not be transferred to a Subsidiary that is not a Loan Party;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(ivviii) the disposition discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(hreceivables);
(vix) salesleases, transfers subleases, non-Exclusive Licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of Parent and other the Restricted Subsidiaries taken as a whole;
(x) Liens permitted by Section 7.02;
(xi) Investments permitted by Section 7.04;
(xii) subject to Section 2.09(c)(iii), dispositions of Investments property as a result of a Casualty Event involving such property or any disposition of real property to a Governmental Authority as a result of a Condemnation of such real property;
(xiii) Permitted Exchanges;
(xiv) Dispositions of investments in joint ventures or investments in Persons that are not Subsidiaries, to the extent required by, or made pursuant to, customary to buy/sell arrangements or rights of first refusal between the joint venture parties or investors set forth in joint venture arrangements and arrangements, investor rights agreements and/or similar binding arrangements;
(vixv) sales or other Dispositions of non-core assets acquired in any Permitted Acquisition or other Investment; provided that such sales shall be consummated within two years of such acquisition or Investment; and provided, further, that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent);
(xvi) any Immaterial Asset Sale;
(xvii) Dispositions of assets that are not permitted by any other clause of this Section 7.03; provided that the Disposition Consideration of all assets sold, transferred, leased or otherwise Disposed of, and of all assets Exclusively Licensed in reliance on this clause (xvii) shall not at the time of and immediately after giving effect to any such transaction exceed $200,000,000 in any fiscal year; and provided, further, that (i) the lapse consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of Directors of Parent) and (ii) no less than 75% thereof shall be paid in cash or abandonment Permitted Investments; it being understood that solely for purposes of intellectual property the 75% cash consideration requirement set forth in this clause (xvii) and clause (xxi) below, any consideration represented by deferred cash consideration (including, without limitation, any consideration arising from the assumption of liabilities other than Indebtedness, purchase price adjustment, Milestone Payment, royalty, earnout, contingent payment, back-end payment or any other deferred payment of a similar nature that may be payable in connection with any such asset Disposition) shall be excluded from such calculation altogether;
(xviii) the surrender, waiver or settlement of contractual rights in the ordinary course of business whichbusiness, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlementsurrender, release, recovery on waiver or surrender settlement of contract, tort claims and litigation claims (whether or other claims of any kind not in the ordinary course of business);
(ixxix) dispositions Dispositions of leasehold improvements or leased assets Equity Interests in any Subsidiary acquired in connection with any a Permitted Acquisition prior to the termination time of such Subsidiary becoming a Wholly Owned Subsidiary, in each case pursuant to any operating leasestock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such person becoming a Subsidiary;
(xxx) the unwinding or termination of any Swap AgreementsPermitted Reorganization; and
(xixxi) in addition to the dispositions Dispositions of assets that are not permitted by the any other clauses clause of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property 7.03; provided that the applicable Borrower shall substantially concurrently (and in any event within one Business Day) apply 100% of the Borrower Net Cash Proceeds thereof to prepay (or cause to be prepaid) the Loans in accordance with Section 2.09(c)(iii); and provided, further, that (i) the Restricted Subsidiaries previously disposed consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Board of pursuant to Directors of Parent) and (ii) no less than 75% thereof shall be paid in cash or Permitted Investments; it being understood that solely for purposes of the 75% cash consideration requirement set forth in this clause (xixxi) during and clause (xvii) above, any consideration represented by deferred cash consideration (including, without limitation, any consideration arising from the twelveassumption of liabilities other than Indebtedness, any purchase price adjustment, Milestone Payment, royalty, earnout, contingent payment, back-month period ending end payment or any other deferred payment of a similar nature that may be payable in connection with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xiasset Disposition) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodexcluded from such calculation altogether.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) (A) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity), (B) any wholly-owned Subsidiary of the Borrower that is not a Loan Party may merge into another wholly-owned Subsidiary of the Borrower that is not a Loan Party (provided that the survivor thereof shall be a wholly-owned Subsidiary of the Borrower) and (C) any non-wholly-owned Subsidiary of the Borrower that is not a Loan Party may merge into another Subsidiary of the Borrower that is not a Loan Party to the extent permitted under clause (iv) below;
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions that, together with the Fair Market Value of all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (subject to D) during any fiscal year of the limitation that the Attributable Receivables Indebtedness thereunder shall Borrower, does not exceed an aggregate amount permitted under Section 6.01(h))$75,000,000;
(v) the Borrower and its Subsidiaries may make dispositions of, or discount without recourse, accounts receivable in connection with the compromise or collection thereof in the ordinary course of business (and not as part of any financing transaction);
(vi) the Borrower and its Subsidiaries may make dispositions of cash and Permitted Investments in the ordinary course of business;
(vii) the Borrower and its Subsidiaries may make dispositions of obsolete, used, worn out or surplus equipment, raw materials and supplies in the ordinary course of business;
(viii) the Borrower and its Subsidiaries may make sales or dispositions of shares of Equity Interests of any of Subsidiary in order to qualify members of the governing body of such Subsidiary if required by applicable law;
(ix) [reserved];
(x) the Borrower and its Subsidiaries may make charitable donations in the ordinary course of business and consistent with past practices;
(xi) the Borrower and its Subsidiaries may grant Liens, make investments and make Restricted Payments to the extent such Liens, investments and Restricted Payments are permitted under Section 6.02, Section 6.04 and Section 6.07, respectively;
(xii) the Borrower and its Subsidiaries may enter into Permitted Safeguard Distributor Transactions; and
(xiii) any Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement Effective Date and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Deluxe Corp)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more another Restricted Subsidiaries Subsidiary (provided that when a Restricted Subsidiary that is any such merger involving a Loan Party is merging with a Restricted Subsidiary, the must result in such Loan Party shall be being the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any another Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Restricted Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or any Subsidiary may transferdispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, (D) sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities rail cars owned less than one year in the ordinary course of business, (subject E) sell rail cars owned more than one year in the ordinary course of business up to $25,000,000 per year (excluding the sale of rail cars by Restricted Subsidiaries to Unrestricted Subsidiaries), (F) sell rail cars by Restricted Subsidiaries to Unrestricted Subsidiaries for cash consideration, or to the limitation that extent not for cash consideration, as otherwise permitted by Section 6.04, (G) lease inventory and, to the Attributable Receivables Indebtedness thereunder shall extent not exceed an aggregate amount permitted under Section 6.01(h))constituting inventory, rail cars and other equipment in the ordinary course of business, (H) sell, transfer and dispose to the Borrower or a Restricted Subsidiary;
(v) the Borrower and its Restricted Subsidiaries may dispose of other assets during the entire term of this Agreement with an aggregate book value that does not exceed five percent (5%) of the Borrower's consolidated current assets (excluding the current assets of Unrestricted Subsidiaries); provided that if the Borrower delivers a Reinvestment Notice with respect to an asset disposition, the five percent (5%) of consolidated current asset limitation of this clause shall not apply to the related asset disposition if the proceeds from such distribution are actually reinvested during the related Reinvestment Period; and
(vi) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and will not permit any of the its Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) the Borrower and its wholly-owned Subsidiaries may consummate the Assurex Acquisition;
(ii) any Person Subsidiary may merge into or consolidate with the Borrower or any Subsidiary; provided that (A) if the Borrower is a party in a transaction in which such transaction, the Borrower is the surviving corporation;
; and (iiB) if any Restricted Subsidiary may merge into (i) Guarantor is a party in such transaction and the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiarynot, the Loan Party surviving entity shall be the surviving entity)or become a Subsidiary Guarantor;
(iii) the Borrower or any Restricted Subsidiary that is not a Loan Party may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (A) to the Borrower or any Restricted Subsidiary; provided that if a transferor other Subsidiary or (B) in such a any transaction is a Loan Party, then the transferee must be a Loan Partypermitted pursuant to Section 6.04;
(iv) the any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets (A) to a Loan Party or (B) in any transaction permitted pursuant to Section 6.04;
(v) Borrower or any Subsidiary may transfermerge into or consolidate with another Person in order to consummate a transaction what is otherwise permitted pursuant to Section 6.04; provided that (A) if the Borrower is a party in such transaction, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities the Borrower is the surviving corporation; and (subject to B) if any Subsidiary Guarantor is a party in such transaction and the limitation that Borrower is not, the Attributable Receivables Indebtedness thereunder surviving entity shall not exceed an aggregate amount permitted under Section 6.01(h))be or become a Subsidiary Guarantor;
(vvi) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business, (C) enter into licenses or sublicenses of technology or other intellectual property in the ordinary course of business, (D) enter into leases in the ordinary course of business, and (E) make any other sales, transfers, leases or dispositions (and any merger or consolidation with another Person in order to consummate such sale, transfer, lease or disposition) that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (E) during any fiscal year of the Borrower, does not exceed the greater of (x) $35,000,000 and (y) an amount equal to 15% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last fiscal quarter included in the financial statements of the Borrower and its Subsidiaries referred to in Section 3.04), as applicable;
(vii) the use or transfer of cash or cash equivalents in a manner that is not prohibited by the terms of the Agreement;
(viii) sales, transfers or dispositions of accounts in the ordinary course of business for purposes of collection or settlement of disputed claims;
(ix) sales, transfers or dispositions of assets resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of; and
(x) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may ; provided that, if any such dissolved or liquidated Subsidiary is a Loan Party, such Subsidiary shall sell, transfer or otherwise dispose of property and assets, including Equity Interests of a Subsidiary, either directly its assets to another Loan Party prior to or through a concurrently with such dissolution or liquidation; provided that any such merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, consolidation involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly-owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation (any such Person, the “Successor Company”) shall not be permitted unless it is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementalso permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably relatedrelated thereto, incidental reasonable extensions thereof or ancillary thereto or that is a reasonable extension thereofcomplimentary thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year from the basis in effect on the Effective Date, transfer, lease or otherwise dispose in each case other than to match the fiscal year of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property Subsidiary to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination fiscal year of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all of its assetsassets (including pursuant to a Sale/Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) (x) any Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
corporation and (iiy) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transferliquidate, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate dissolve or dissolve if wind up its affairs so long as the Borrower determines in good faith that such liquidation liquidation, dissolution or dissolution winding up is in the best interests interest of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders;
(viii) any (x) Person (other than the Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is such Restricted Subsidiary (provided that any such merger or consolidation involving a Subsidiary Guarantor must result in the surviving entity remaining or becoming a Subsidiary Guarantor) and any (y) non-Loan Party may merge into or consolidate with the Borrower or any Subsidiary of the Borrower (provided that any such merger or consolidation involving a Subsidiary Guarantor must result in the surviving entity remaining or becoming a Subsidiary Guarantor);
(iii) any Restricted Subsidiary (other than the Borrower) may merge into or consolidate with any Person in a transaction permitted under clauses (xi) and (xiii) hereunder in which the surviving entity is not a Subsidiary;
(iv) any Restricted Subsidiary (other than the Borrower) may Dispose of any or all of its assets (upon voluntary liquidation, dissolution or otherwise) to the Borrower or any other Restricted Subsidiary (except that a Loan Party may only Dispose of its assets under this clause (a)(iv) to the Borrower or another Loan Party);
(v) sales, transfers and other Dispositions of inventory in the ordinary course of business, used, worn out, obsolete or surplus property and cash and Cash Equivalents in the ordinary course of business, and the assignment, cancellation, abandonment or other Disposition of Intellectual Property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or necessary in the conduct of the business of the Borrower and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, taken as a whole;
(vi) (x) Dispositions (including Equity Interests of a Subsidiary, either directly Subsidiaries) or through a merger or consolidation, exclusive licenses to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists Borrower or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) any such Disposition or exclusive license made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 7.04 and (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) Equity Interests of a Loan Party may not be transferred to a Subsidiary that is not such Subsidiary Guarantor, a Loan Party or (Ay) Dispositions by the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia Borrower or any territory thereofRestricted Subsidiary to any Subsidiary that is not a Restricted Subsidiary in an amount not to exceed the greater of (x) $25,000,000150,000,000 and (y) 5% of Consolidated Total Assets for the most recently completed Test Period per fiscal year;
(vii) (x) Dispositions or the discount or sale, (B) in each case without recourse, of receivables arising in the Successor Company shall expressly assume all the obligations ordinary course of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentbusiness, and (Cy) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(viii) leases, subleases, licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of the Borrower and the Restricted Subsidiaries taken as a whole;
(ix) subject to Section 2.08(b)(ii), dispositions of property as a result of a Casualty Event involving such property or any disposition of real property to a Governmental Authority as a result of a Condemnation of such real property;
(x) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(xi) Dispositions of assets or Equity Interests; provided that (i) the consideration received for such assets or Equity Interests shall be in an amount at least equal to the fair market value thereof (determined by a Responsible Officer or, for any Disposition in reliance on this Section 7.03(a)(xi) of assets in one transaction or a series of related transactions with Net Cash Proceeds in excess of $10,000,000, in good faith by the Board of Directors of the Borrower) and no less than 75% thereof shall be paid in cash or Cash Equivalents, (ii) the Net Cash Proceeds of such Dispositions do not exceed an aggregate amount of $200,000,000 calculated from and after the Amendment No. 5. Effective Date, (iii) such Subsidiary Guarantor Dispositions are consummated within twenty-fourforty-two (2442) months following the Amendment No. 5 Effective Date and (iv) no Event of Default shall have delivered occurred or be continuing or result therefrom;
(xii) the surrender, waiver or settlement of contractual rights or claims and litigation claims in the ordinary course of business;
(xiii) Dispositions of Equity Interests in any Subsidiary acquired in connection with a Permitted Acquisition, in each case pursuant to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such Person becoming a Subsidiary;
(xiv) Transactions permitted under Section 7.02, 7.04 and 7.06, in each case, solely to the Administrative Agent extent constituting Dispositions hereunder;
(xv) Permitted Restructuring Transactions;
(xvi) other Dispositions of assets or Equity Interests; provided that (i) the consideration received for such assets or Equity Interests shall be in an officer’s certificate stating that such merger or consolidation and such supplement amount at least equal to the fair market value thereof (determined by a Responsible Officer or, for any Disposition in reliance on this Section 7.03(a)(xvi) of assets in one transaction or a series of related transactions with Net Cash Proceeds in excess of $10,000,000, in good faith by the Board of Directors of the Borrower) and no less than 75% thereof shall be paid in cash or Cash Equivalents, (ii) the Net Cash Proceeds of such Dispositions do not exceed an aggregate amount of the greater of (x) $20,000,00050,000,000 and (y) 1% of Consolidated Total Assets for the most recently completed Test Period in any calendar year and (iii) no Event of Default shall have occurred or be continuing or result therefrom; and
(xvii) Dispositions of fixed or capital assets and related property in connection with Indebtedness permitted under Section 7.01 for the purpose of financing such fixed or capital assets and related property or a lease of such assets by the Borrower or any Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementas a lessee or debtor.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, to engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries (including (i) the Acquired Business and its Subsidiaries, after giving effect to the consummation of the Acquisition and (ii) the ESI Acquired Business and its Subsidiaries, after giving effect to the consummation of the ESI Acquisition) on the date of execution of this Agreement Amendment No. 5 Effective Date and any business businesses reasonably related, incidental complementary, incidental, or ancillary thereto or that is a similar or complementary thereto or reasonable extension extensions thereof.
(c) The Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sellchange its fiscal year from the basis in effect on the Closing Date; provided, transferhowever, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in Borrower may permit the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property ESI Acquired Business to change its fiscal year to align with the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business fiscal year of the Borrower as in effect on the Amendment No. 5 Effective Date; provided further that the Loan Parties and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromisemay, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition upon written notice to the dispositions permitted by Administrative Agent, change their respective fiscal years to any other fiscal year reasonably acceptable to the other clauses Administrative Agent, in which case, at the request of this Section 6.03(c)the Administrative Agent, leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this clause (xi) during the twelve-month period ending with the month Agreement that are necessary to reflect such change in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodfiscal year.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Each of Holdings and the Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) the Mergers shall be permitted;
(iii) (A) any Non-Loan Party Subsidiary may merge with any other Non-Loan Party Subsidiary, and (B) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iiiiv) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to a Loan Party;
(v) each of Holdings, the Borrower and their Restricted Subsidiaries may (A) sell or lease equipment, inventory, accounts receivable or other assets in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) dispose of damaged, obsolete, unsuitable or worn out property, or property no longer used or useful in the business of Holdings, the Borrower or their Restricted Subsidiaries in the reasonable opinion of the Borrower (including assets no longer useful in the business of Holdings, the Borrower and their Restricted Subsidiaries that are acquired pursuant to a Permitted Acquisition), (D) license or sublicense intellectual property or other general intangibles and licenses, leases or subleases of other property; provided that, such licensing or sublicensing shall not interfere in any material respect with the Borrower’s continuing use of such intellectual property or other general intangibles and licenses, leases or subleases of other property, (E) issue or sell Equity Interests in an Unrestricted Subsidiary, (F) foreclose on any assets, (G) make any sales, transfers, leases or dispositions having a fair market value not to exceed $3,000,000 in any fiscal year, (H) make any sales, transfers, leases or dispositions between, by or among Non-Loan Party Subsidiaries, (I) make any sales, transfers, leases or dispositions constituting (i) investments permitted under Section 6.04, (ii) Restricted Payments permitted under Section 6.07 and (iii) Sale and Leaseback Transactions permitted under Section 6.10, (I) make dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset, (J) settle or write-off accounts receivables or sell overdue accounts receivable for collection in the ordinary course of business, (K) use, sell, exchange or dispose of money or Permitted Investments in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents, (L) make dispositions of any Equity Interests in any joint venture entity not constituting a Restricted Subsidiary to the extent required by the applicable joint venture agreement or similar binding arrangements relating thereto and (M) make any other sales, transfers, leases or dispositions of assets (including by way of any Sale and Leaseback Transaction), the book value of which, together with the book value of all other assets of Holdings, the Borrower and their Restricted Subsidiaries previously sold, transferred, leased or disposed of in reliance upon this clause (M) during any fiscal year of the Holdings or the Borrower, as applicable, does not exceed 15% of Consolidated Total Assets (determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or Section 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a)), in each case at the time any such disposition is made; provided that with respect to any such sale, transfer, lease or disposition made in reliance on this clause (G): (1) Holdings, the Borrower or any Restricted Subsidiary; provided that if a transferor , as the case may be, receives consideration at the time of such sale, transfer, lease or disposition at least equal to the fair market value (as determined in such a transaction is a Loan Partygood faith by the Borrower) of the assets and (2) 75% of the consideration received by Holdings, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge is Restricted Subsidiaries for such assets shall be cash or Permitted Receivables Related Assets under Investments (unless such disposition is effected pursuant to a Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(hAsset Swap));; and
(vvi) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a ; provided that any such merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, consolidation involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a wholly-owned Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation (any such Person, the “Successor Company”) shall not be permitted unless it is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementalso permitted by Section 6.04.
(b) The Each of Holdings and the Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably relatedrelated complementary, incidental or ancillary thereto or that is a reasonable extension extensions thereof.
(c) The Each of Holdings and the Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (CommerceHub, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests assets of any of the Borrower and its Restricted Subsidiaries taken as a whole (including pursuant to a Sale and Leaseback Transaction) (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person (including a Subsidiary) may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;corporation (including a merger the purpose of which is to reorganize the Borrower into a new jurisdiction; provided that the Borrower shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia); and
(ii) any Restricted Subsidiary the Borrower may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted SubsidiaryPerson; provided that (i) such Subsidiary Guarantor the Borrower shall be the continuing or surviving entity corporation or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantorthe Borrower, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state thereof or commonwealth thereof, the District of Columbia or any territory thereofColumbia, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor the Borrower under the Subsidiary Guaranty this Agreement and the other Loan Documents to which the Subsidiary Guarantor Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and (C) such Subsidiary Guarantor the Borrower shall have delivered to the Administrative Agent (i) an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty this Agreement comply with this AgreementAgreement and (ii) information and documentation of the type referred to in Section 5.01(e)(ii); provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor the Borrower under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Samples: 364 Day Term Loan Credit Agreement (Take Two Interactive Software Inc)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, and (D) make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions of assets, the book value of which, together with the book value of all other assets of the Borrower and its Subsidiaries previously sold, transferred, leased or disposed of in reliance upon this clause (subject to D) during any fiscal year of the limitation that the Attributable Receivables Indebtedness thereunder shall Borrower, does not exceed an aggregate amount permitted under Section 6.01(h))$10,000,000;
(v) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;; and
(vi) the Borrower investments permitted by Section 6.04, Permitted Liens, and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a Payments permitted by Section 6.07 will not be prohibited; provided that any such merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, consolidation involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly-owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation (any such Person, the “Successor Company”) shall not be permitted unless it is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementalso permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Healthequity Inc)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests assets of any of the Borrower and its Restricted Subsidiaries taken as a whole (including pursuant to a Sale and Leaseback Transaction) (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person (including a Subsidiary) may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporationcorporation (including a merger the purpose of which is to reorganize the Borrower into a new jurisdiction; provided that the Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof);
(ii) any Restricted Subsidiary the Borrower may merge into or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) one if the Person formed by or more Restricted Subsidiaries surviving any such merger or consolidation (provided that when a Restricted Subsidiary that any such Person, the “Successor Company”) is not the Borrower, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a Loan Party is merging party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Borrower shall have delivered to the Administrative Agent (i) an officer’s certificate stating that such merger or consolidation and such supplement to this Agreement comply with a Restricted Subsidiarythis Agreement and (ii) information and documentation of the type referred to in Section 5.01(e)(ii); provided, further, that if the foregoing are satisfied, the Loan Party shall Successor Company will succeed to, and be substituted for, the surviving entity)Borrower under this Agreement;
(iii) the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Subsidiary; provided that the transferee must be the Borrower or a Successor Company;
(iv) any Subsidiary may merge into any other Subsidiary or any Restricted other person if the surviving Person is a Subsidiary;
(v) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted another Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;and
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vvi) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower No Loan Party will, or will not, and will not permit any Restricted Subsidiary to, merge into into, or amalgamate or consolidate with any other Person, or permit any other Person to merge into into, or amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted the Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation; provided that any such merger arising in connection with an Acquisition shall not be permitted unless also permitted by Section 6.04;
(ii) (a) any Restricted Subsidiary may merge into or amalgamate with a Loan Party in a transaction in which the surviving entity or successor entity is a Loan Party; provided, however, that (i1) any such merger involving the Borrower or must result in the Borrower as the survivor thereof, and (ii2) one or more Restricted Subsidiaries if arising in connection with an Acquisition, shall not be permitted unless also permitted by Section 6.04, and (provided that when a Restricted b) any non-Loan Party Subsidiary that is a Restricted Subsidiary may merge into or amalgamate with another non-Loan Party Subsidiary that is merging with a Restricted Subsidiary; provided, the Loan Party that, if arising in connection with an Acquisition, shall not be the surviving entity)permitted unless also permitted by Section 6.04;
(iii) any of the Borrower following sales, transfers, leases or other disposition may occur:
(A) any Restricted Subsidiary that is not a Loan Party may sell, transfer, lease or otherwise dispose of all its assets to a Loan Party;
(B) any Loan Party may sell, transfer, lease or substantially all otherwise dispose of its assets to the Borrower or any other Loan Party;
(C) IEDB Transfers;
(D) any Restricted Subsidiary; provided Subsidiary that if is not a transferor in such Loan Party may sell, transfer, lease or otherwise dispose of its assets to any other Restricted Subsidiary that is not a transaction Loan Party;
(E) any Loan Party may sell, transfer, lease or otherwise dispose of its assets to any Restricted Subsidiary that is not a Loan Party, then and any Loan Party or Restricted Subsidiary may sell, transfer lease or otherwise dispose of its assets to any Unrestricted Subsidiary, any Affiliate of any Loan Party or Restricted Subsidiary, or any Person in which a Loan Party or other Restricted Subsidiary owns no more than 50% of the transferee must be voting Equity Interests thereof, so long as the aggregate net book value of all such assets, when taken together with all other Restricted Intercompany Transactions, does not exceed the Restricted Intercompany Transactions Amount; and
(F) any Loan Party may sell, transfer, lease or otherwise dispose of Historical Used Equipment to any Restricted Subsidiary that is not a Loan Party, and any Loan Party or Restricted Subsidiary may sell, transfer lease or otherwise dispose of Historical Used Equipment to any Unrestricted Subsidiary, any Affiliate of any Loan Party or Restricted Subsidiary, or any Person in which a Loan Party or other Restricted Subsidiary owns no more than 50% of the voting Equity Interests thereof; provided, that the aggregate net book value of all sales, transfers, leases and dispositions made in reliance on this clause (F) shall not exceed (i) the U.S. Dollar Amount of U.S. $125,000,000 at any time the Total Net Leverage Ratio is less than 3.00 to 1.00 (both before and after giving effect thereto on a Pro Forma Basis), and (ii) the U.S. Dollar Amount of U.S. $50,000,000 at any time the Total Net Leverage Ratio is equal to or greater than 3.00 to 1.00 (both before and after giving effect thereto on a Pro Forma Basis); provided, further, that if a sale, transfer, lease or disposition was permitted because the Total Net Leverage Ratio was less than 3.00 to 1.00 (both before and after giving effect thereto on a Pro Forma Basis), but subsequent thereto, the Total Net Leverage Ratio equals or exceeds 3.00 to 1.00, such sale, transfer, lease or disposition shall remain a permitted transaction under this clause (F), but no further sales, transfers, leases or dispositions shall be permitted hereunder until such time as the Total Net Leverage Ratio is less than 3.00 to 1.00 and the Loan Parties have not otherwise reached the above-mentioned U.S. $125,000,000 limitation;
(iv) the Borrower or any Restricted Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the on Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h6.01(n))) at any time;
(v) the Loan Parties and the Restricted Subsidiaries may:
(A) sell inventory in the ordinary course of business;
(B) effect sales, trade-ins or dispositions of used, obsolete, scrap, worn out or surplus equipment or property for value if such equipment is located at Plants Designated for Closure or Sale or otherwise in the ordinary course of business consistent with past practice;
(C) enter into licenses of technology in the ordinary course of business;
(D) sell, transfer, assign, lease or otherwise dispose of owned, or sublease, assign or earlier terminate leases or subleases in connection with leaseholds or subleaseholds for, Plants Designated for Closure or Sale; provided, that the aggregate net book value for all Plants Designated for Closure or Sale that are sold, transferred, assigned, disposed of, leased, subleased or early terminated shall not exceed the U.S. Dollar Amount of U.S. $100,000,000;
(E) [Reserved]
(F) make any other sales, transfers, leases or dispositions (including Sale and Leaseback Transactions that comply with Section 6.10) that, together with all other property of the Loan Parties and the Restricted Subsidiaries previously leased, sold or disposed of as permitted by this clause (F) during the term of this Agreement, and as determined based on net book value for all property subject to such sales, transfers, leases or other dispositions, does not exceed 35% of Consolidated Total Assets, and with such sales, transfers, leases and dispositions in any Fiscal Year not exceeding 15% of Consolidated Total Assets (the “Annual Asset Sale Limitation”); provided, that (i) Consolidated Total Assets shall be computed based upon the most recently audited financials provided by the Borrower to the Administrative Agent under Section 5.01(a), and (ii) computations of the Borrower’s compliance with this clause (F) shall be made after giving effect to the Asset Sale and Purchase Offset, with the transactions permitted to be credited toward the Asset Sale and Purchase Offset not counting toward the limitations set forth in this clause (F); provided, further, all sales, transfers, leases and other dispositions permitted under this Section 6.03(a)(v) shall be for fair market value and, other than with respect to clauses (v)(B), (v)(C) (with respect to cross-licensing of technology where the consideration for the issuance of a license is (1) the receipt of a different license of comparable value, (2) the receipt of Equity Interests in a Person (or the enhancement of the value of existing Equity Interests in such Person) or (3) an interest in a joint development arrangement (or the enhancement of value under an existing joint development agreement), in which case no cash consideration is required), (v)(D) and (v)(E), at least 75% of the consideration paid therefor shall be in cash when the Total Net Leverage Ratio, on a Pro Forma Basis giving effect to the applicable transaction, is equal to or greater than 3.00 to 1.00;
(vi) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the its best interests of the Borrower and is not materially disadvantageous to the Lenders;
, and, if such Restricted Subsidiary is a Loan Party, such Loan Party’s assets and property (viincluding revenues) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, are transferred to the extent permitted by clause (c) of this Sectionanother Loan Party; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia Loan Party or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Restricted Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto may engage in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementPermitted Corporate Restructuring Transactions.
(b) The Borrower No Loan Party will, or will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower Loan Parties and its the Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental related or ancillary thereto or that is a reasonable extension thereofcomplementary thereto.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) [intentionally omitted];
(ii) any Person Subsidiary may merge into or consolidate with the Borrower or any Subsidiary; provided that (A) if the Borrower is a party in a transaction in which such transaction, the Borrower is the surviving corporation;
; and (iiB) if any Restricted Subsidiary may merge into (i) Guarantor is a party in such transaction and the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiarynot, the Loan Party surviving entity shall be the surviving entity)or become a Subsidiary Guarantor;
(iii) the Borrower or any Restricted Subsidiary that is not a Loan Party may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (A) to the Borrower or any Restricted Subsidiary; provided that if a transferor other Subsidiary or (B) in such a any transaction is a Loan Party, then the transferee must be a Loan Partypermitted pursuant to Section 6.04;
(iv) the any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets (A) to a Loan Party or (B) in any transaction permitted pursuant to Section 6.04;
(v) Borrower or any Subsidiary may transfermerge into or consolidate with another Person in order to consummate a transaction what is otherwise permitted pursuant to Section 6.04; provided that (A) if the Borrower is a party in such transaction, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities the Borrower is the surviving corporation; and (subject to B) if any Subsidiary Guarantor is a party in such transaction and the limitation that Borrower is not, the Attributable Receivables Indebtedness thereunder surviving entity shall not exceed an aggregate amount permitted under Section 6.01(h))be or become a Subsidiary Guarantor;
(vvi) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business, (C) enter into licenses of technology or other intellectual property in the ordinary course of business, and (D) make any other sales, transfers, leases or dispositions (and any merger or consolidation with another Person in order to consummate such sale, transfer, lease or disposition) so long as (x) no Event of Default then exists or would immediately result therefrom and (y) at least 75% of the aggregate consideration received in connection with such sale, transfer, lease or disposition is comprised of cash or Permitted Investments;
(vii) the use or transfer of cash or cash equivalents in a manner that is not prohibited by the terms of the Agreement;
(viii) sales, transfers or dispositions of accounts in the ordinary course of business for purposes of collection or settlement of disputed claims;
(ix) sales, transfers or dispositions of assets resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of;
(x) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that, if any such dissolved or liquidated Subsidiary is a Loan Party, such Subsidiary shall sell, transfer or otherwise dispose of its assets to another Loan Party prior to or concurrently with such dissolution or liquidation;
(vixi) the Borrower and the Restricted its Subsidiaries may dispose of property and assets, including unwind or otherwise settle any Permitted Equity Interests of a Subsidiary, either directly Derivative or through a merger or consolidation, to Permitted Warrant Transaction the extent permitted entry into which was not prohibited by clause (c) of this SectionAgreement; and
(viixii) so long as no Default exists the Borrower and its Subsidiaries may consummate the transactions set forth on Schedule 6.03; provided that any such merger or would result therefrom, consolidation involving a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly-owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation (any such Person, the “Successor Company”) shall not be permitted unless it is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementalso permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary related thereto or that is a reasonable extension extensions thereof.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sellchange its fiscal year from the basis in effect on the Effective Date, transfer, lease or otherwise dispose in each case other than to match the fiscal year of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property Subsidiary to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination fiscal year of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower MKCapri Holdings will not, and will not permit any Restricted Subsidiary to, merge into or amalgamate or consolidate with any other Person, or permit any other Person to merge into or amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in consummate a series of transactions) all of its assets, or all or substantially all of Division as the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired)Dividing Person, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person Subsidiary (other than a Borrower) may merge into or consolidate or amalgamate with MKCapri Holdings in a transaction in which MKCapri Holdings is the Borrower surviving entity (subject to providing such documents with respect to the surviving entity as may be reasonably required by the Administrative Agent);
(ii) any Subsidiary may merge into or consolidate or amalgamate with (subject to providing such documents as may be reasonably required by the Administrative Agent) the Company in a transaction in which the Borrower Company is the surviving corporation;
entity (ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging subject to providing such documents with a Restricted Subsidiary, the Loan Party shall be respect to the surviving entityentity as may be reasonably required by the Administrative Agent);
(iii) any Subsidiary (other than the Borrower Company) may merge into or consolidate or amalgamate with any Restricted other Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to (other than the Borrower or any Restricted Subsidiary; provided that if a transferor Company) in such a transaction in which the surviving entity is a Subsidiary (and if the surviving entity is a Loan Party, then subject to providing such documents with respect to the transferee must surviving entity as may be reasonably required by the Administrative Agent); provided that (x) in the case of a merger, consolidation or amalgamation of a Subsidiary that is not a Foreign Subsidiary Borrower into or with a Foreign Subsidiary Borrower in which the surviving entity is not the Foreign Subsidiary Borrower, the surviving Subsidiary shall be an Eligible Foreign Subsidiary and shall execute and deliver to the Administrative Agent a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and shall satisfy the other conditions precedent set forth in Section 4.03), and (y) in the case of a merger, consolidation or amalgamation of a Subsidiary that is not a Guarantor into or with a Guarantor, the surviving company shall be a Loan Party;Guarantor; and
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vother than a Borrower) any Restricted Subsidiary may liquidate or dissolve if the Borrower MKCapri Holdings determines in good faith that such liquidation or dissolution is in the best interests of the Borrower MKCapri Holdings and its Subsidiaries and is not materially disadvantageous to the Lenders;
(viv) the Borrower and the Restricted Subsidiaries MKCapri Holdings or any Subsidiary may dispose of property and assets, including Equity Interests effect any Investment permitted by Section 6.04 by means of a Subsidiarymerger, either directly consolidation or through amalgamation of or with the Person that is the subject of such Investment with MKCapri Holdings or any of its Subsidiaries (provided that, in the case of a merger or consolidationamalgamation with any Loan Party, the Loan Party is the survivor);
(vi) MKCapri Holdings or any Subsidiary may effect the Transactions;
(vii) any Subsidiary (other than a Borrower) may change its legal form and any Domestic Subsidiary may be a party to a merger the sole purpose of which is to reincorporate or reorganize in another jurisdiction in the United States if, in any such case, MKCapri Holdings reasonably determines in good faith that such action is in the best interests of MKCapri Holdings and its Subsidiaries and is not materially disadvantageous to the extent permitted by clause Lenders (c) of this Sectionit being understood that a Subsidiary that is a Loan Party will remain a Loan Party); and
(viiviii) so long as no Default exists or would result therefrom, a any Subsidiary Guarantor may merge or consolidate with any other Person that is not an LLC may consummate a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be Division as the continuing or surviving entity or (ii) if Dividing Person if, immediately upon the Person formed by or surviving any such merger or consolidation (any such Personconsummation of the Division, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws assets of the United Statesapplicable Dividing Person are held by one or more Subsidiaries at such time, any state or commonwealth thereof, the District of Columbia with respect to assets not so held by one or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted formore Subsidiaries, such Subsidiary Guarantor under Division, in the aggregate, would otherwise result in Disposition permitted by this AgreementSection 6.03.
(b) The Borrower MKCapri Holdings will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, engage to any material extent Dispose of (in any business other than businesses one or in a series of transactions) all or substantially all of the type conducted by the Borrower assets of MKCapri Holdings and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose (including pursuant to a Sale and Leaseback Transaction) of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired, and for purposes hereof, any capital stock issued by the Borrower which is held by the Borrower as treasury stock shall not be deemed to be property or an asset of the Borrower and shall not be subject to this Section 6.03), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person Subsidiary may merge into the Borrower or consolidate with a Loan Party in a transaction in which the Borrower surviving entity is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries becomes a Loan Party (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, any such merger involving the Loan Party shall be Borrower must result in the Borrower as the surviving entity);
(iiiii) any wholly-owned Subsidiary may merge into or consolidate with any wholly-owned Subsidiary in a transaction in which the surviving entity is a wholly-owned Subsidiary and no Person other than the Borrower or a wholly-owned Subsidiary receives any Restricted consideration, provided that if any such merger or consolidation described in this clause (ii) shall involve a Loan Party, the surviving entity of such merger or consolidation shall be or shall become a Loan Party;
(iii) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower a Loan Party or any Restricted Subsidiary; provided that if a transferor in such wholly-owned Subsidiary pursuant to a transaction is a Loan Party, then the transferee must be a Loan Partynot otherwise prohibited under this Agreement;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower;
(v) the Borrower and may merge with any other Person so long as the Borrower is not materially disadvantageous to the Lenderssurviving entity;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a any Subsidiary Guarantor may merge or consolidate with any other Person that is not so long as the surviving entity is, in the case of a Restricted Subsidiary Guarantor, a Subsidiary Guarantor, and in all other cases, a wholly-owned Subsidiary;
(vii) any Subsidiary may dispose of all or substantially all of the stock (or other equity interests) of any of its Subsidiaries other than a Material Subsidiary to, and Borrower or any Subsidiary may dispose of assets to, any other Person so long as Borrower delivers a certificate to the Administrative Agent demonstrating pro forma compliance with Section 6.05 after giving effect to such transaction; and
(viii) the Borrower may transfer the stock (or other equity interests) of any Subsidiary held by the Borrower to any wholly-owned Subsidiary; provided that any such transfer of the stock (ior other equity interests) such of any Domestic Subsidiary that is, or that would otherwise be required to be, a Subsidiary Guarantor shall may only be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such made to a Subsidiary Guarantor, (A) ; provided further that the Successor Company foregoing proviso shall be an entity organized or existing under not apply to the laws transfer of the United States, stock (or other equity interests) of any state Domestic Subsidiary during the period of six (6) months (or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to longer period as may be agreed upon by the Administrative Agent, and (C) after the acquisition after the Effective Date of such Domestic Subsidiary Guarantor shall have delivered to by the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this AgreementBorrower.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and will not permit any of the Restricted its Subsidiaries to, sell, transfer, lease change its fiscal year to end on a day other than as such fiscal year end is currently determined or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of change the Borrower, is not material to the conduct ’s method of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddetermining fiscal quarters.
Appears in 1 contract
Samples: Credit Agreement (NetApp, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sellliquidate or dissolve, transfer(including, lease or otherwise dispose of (in one transaction or in a series of transactions) all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, pursuant to a Division) except that:
, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) any Person Subsidiary may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving corporation;
, (ii) any Restricted Subsidiary may merge into (i) any other Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is a Subsidiary (provided that when that, in the case of a Restricted merger of a Subsidiary that is not a Loan Party Foreign Subsidiary Borrower into a Foreign Subsidiary Borrower in which the surviving Subsidiary is merging with a Restricted Subsidiarynot the Foreign Subsidiary Borrower, the Loan Party surviving Subsidiary shall be execute and deliver to the surviving entityAdministrative Agent a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and shall satisfy the other conditions precedent set forth in Section 4.03);
, and (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(vother than a Foreign Subsidiary Borrower) any Restricted Subsidiary may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and its Subsidiaries and is not materially disadvantageous to the Lenders;
(vi) Lenders and except that the Borrower and the Restricted Subsidiaries Company or any Subsidiary may dispose of property and assets, including Equity Interests effect any acquisition permitted by Section 6.04 by means of a Subsidiary, either directly or through a merger or consolidation, to of the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not the subject of such acquisition with the Company or any of its Subsidiaries (provided that, in the case of a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be merger with the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such PersonCompany, the “Successor Company”) Company is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementsurvivor).
(ba) The Borrower Company will not, and nor will not it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transferlease, lease transfer or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower one transaction or a Restricted Subsidiary; provided that any such sales, transfers, leases series of transactions) all or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination substantially all of the Borrower, is not material to the conduct assets of the business of the Borrower Company and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Period.
Appears in 1 contract
Samples: Credit Agreement (Tapestry, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests stock of any of its Restricted Subsidiaries the Subsidiary Loan Parties (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) any Person Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
, (ii) any Restricted Subsidiary may merge into (i) any Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (surviving entity is a Subsidiary; provided that when a Restricted to the extent either such Subsidiary that is a Subsidiary Loan Party is merging with a Restricted SubsidiaryParty, the Loan Party surviving entity shall be the surviving entity);
a Subsidiary Loan Party, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted to another Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of ; provided that any such merger involving a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiarywholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04, (v) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in amount at least equal to the fair market value thereof, (vi) Borrower or its Subsidiaries may make Specified Asset Sales provided that, such Specified Asset Sales can be made for Cash or non-Cash consideration until the amount of non-Cash consideration exceeds $10,000,000 in the aggregate; thereafter, such Specified Asset Sales shall be made for at least 66 2/3% in Cash (provided that the limitation with respect to Cash consideration set forth in this Section 6.03(vi) shall not apply to the asset sales described under clause (iv) of the definition of Specified Asset Sales), (vii) Borrower or its Subsidiaries may take any action permitted by Section 6.04 below to the extent constituting an Asset Sale, (viii) subject to Section 6.16, Borrower and its Subsidiaries may make Asset Sales (other than Specified Asset Sales) having an aggregate fair market value not in excess of $20,000,000 in any fiscal year; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company consideration received for each such Asset Sale shall be in an entity organized or existing under amount at least equal to the laws of the United States, any state or commonwealth fair market value thereof, the District of Columbia or any territory thereof, ; (B) the Successor Company shall expressly assume all the obligations of consideration for each such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor Asset Sale is a party pursuant to a supplement hereto or thereto at least 66 2/3% in form reasonably satisfactory to the Administrative Agent, Cash and (C) the proceeds of such Subsidiary Guarantor Asset Sales shall have delivered be applied as required by Section 2.10(c), (ix) Borrower may reorganize for the purpose of changing its jurisdiction of incorporation to the Administrative Agent an officer’s certificate stating that such merger State of Delaware or consolidation the State of Georgia, and such supplement (x) notwithstanding anything to the Subsidiary Guaranty comply contrary herein, the Borrower shall be permitted to enter into and consummate the Church's Disposition, and CT, Church's Texas and AFC Holdings shall be released from any further obligations in connection with this Agreement; providedAgreement and the Loan Documents, further, that if so long as the foregoing aggregate amount of gross proceeds from the Church's Disposition are satisfied, no less than $375,000,000 (the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement"Church's Gross Proceeds").
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary related thereto or and that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any materially change its or its Subsidiary's material lines of business taken as a whole as of the Restricted Subsidiaries toClosing Date. For the avoidance of doubt, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course type of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of conducted by the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day Closing Date is the franchising of food-service related businesses and the last month before provision of directly related services and products and the start distribution, wholesale and retailing of the applicable Calculation Periodfood and food related products.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any of its assetsassets (including pursuant to a Sale and Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) (A) any Restricted Subsidiary may merge into (i) or consolidate with a Loan Party in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries surviving entity is such Loan Party (provided that when a Restricted any such merger or consolidation involving the Borrower must result in the Borrower as the surviving entity) and (B) any other Subsidiary that is not a Loan Party may merge into or consolidate with any Subsidiary that is merging with not a Restricted Subsidiary, the Loan Party shall be the surviving entity)Party;
(iii) (A) the Borrower or any Restricted Subsidiary of its Subsidiaries may sell, transfer, lease or otherwise dispose of all or substantially all any of its assets to a Loan Party and/or Apollo Global and its subsidiaries; provided that the aggregate amount of all such assets sold, transferred, leased or otherwise disposed to Apollo Global and its subsidiaries by Borrower or any Restricted Subsidiary; such Subsidiary (other than Apollo Global or any of its subsidiaries) pursuant to this Section 6.03(a)(iii)(A), together with investments in Equity Interests of, and capital contributions to, Apollo Global and its subsidiaries permitted pursuant to Section 6.04(d), in any case whether made prior to, on or after the Effective Date, shall not exceed $801,000,000 (provided further that if any such assets sold, transferred, leased or disposed to Apollo Global and its subsidiaries shall not include any business unit or operations of University of Phoenix engaged primarily in U.S. education activities), and (B) any Subsidiary which is not a transferor in such Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to another Subsidiary which is not a transaction is a Loan Party, then the transferee must be a Loan PartySubsidiary Guarantor;
(iv) the Borrower and its Subsidiaries may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, (C) enter into licenses of technology in the ordinary course of business, (D) make any Subsidiary may transferother sales, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities transfers, leases or dispositions that, together with all other property of the Borrower and its Subsidiaries previously leased, sold, transferred or disposed of as permitted by this clause (subject to D) during any fiscal year of the limitation that the Attributable Receivables Indebtedness thereunder shall Borrower, does not exceed an aggregate amount permitted under Section 6.01(h10% of Consolidated Tangible Assets (determined as of the end of the most recently completed fiscal year of the Borrower), and (E) dispose (including subleases of property no longer used or useful in the business of the Loan Parties) of obsolete, worn out or surplus property (including the abandonment of intellectual property no longer used or useful in the business of the Loan Parties);
(v) any Restricted Subsidiary may may, liquidate or dissolve (or merge into another Person for such purpose) if the Borrower determines in good faith that such merger, liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) any Subsidiary may merge into, liquidate or dissolve to effect a transaction otherwise permitted pursuant to Section 6.03(a)(iv) or a Permitted Acquisition or disposition of assets in connection with any transaction permitted by Section 6.04;
(vii) the Borrower and the Restricted any of its Subsidiaries may write-off, discount, sell or otherwise dispose of property defaulted or past due receivables and assets, including similar obligations in the ordinary course of business;
(viii) the Borrower and any of its Subsidiaries may issue Equity Interests to qualify directors of a Subsidiary, either directly the board of directors (or through a merger similar governing body) of Borrower or consolidation, any of its Subsidiaries where required by applicable law or to satisfy other requirements of applicable law with respect to the extent ownership of Equity Interests in Foreign Subsidiaries or nominal shares for tax considerations;
(ix) the Borrower and any of its Subsidiaries may sell non-core, duplicative or unnecessary assets acquired in Permitted Acquisitions;
(x) the Borrower and any of its Subsidiaries may make dispositions in connection with condemnation or casualty events;
(xi) the Borrower and any of its Subsidiaries may license or sublicense intellectual property in the ordinary course of business;
(xii) the Borrower and any of its Subsidiaries may make dividends and distributions otherwise permitted by clause (c) of this Sectionunder Section 6.07; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (Axiii) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia Borrower or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents its Subsidiaries may issue Equity Interests to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto employees in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply connection with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementemployee compensation arrangements.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien fiscal year in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Apollo Group Inc)
Fundamental Changes and Asset Sales. (a) The Borrower No Loan Party or Subsidiary will not, and will not permit any Restricted Subsidiary to, merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) any other Person, or permit any other Person to merge into or consolidate or amalgamate with (or engage in any other substantially similar transaction) it, or sell, transfer, lease or otherwise dispose dispose, including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division (each, a “disposal” or “disposition”) of (in one transaction or in a series of transactions) all of its assetsany assets (whether now owned or hereafter acquired) to any Person, or all liquidate or substantially all of the Equity Interests of any of its Restricted Subsidiaries dissolve (including, in each case, pursuant to a Delaware LLC Division). Notwithstanding the foregoing the following, shall be permitted:
(i) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any Person may merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any Borrower in a transaction in which the applicable Borrower is the surviving entity (provided that if a Subsidiary Borrower merges or consolidates with or into the Parent, the Parent is the surviving corporation),
(ii) any Subsidiary may merge, consolidate or amalgamate (or engage in a substantially similar transaction) with any other Person in a transaction in which the surviving entity is a wholly-owned Subsidiary (in the case of a Loan Party, subject to preceding clause (i)),
(iii) assets or equity interests of any Subsidiary may be disposed of to any other wholly-owned Subsidiary or to the Parent or by a Borrower to another Borrower or by a Borrower to a wholly-owned Subsidiary,
(iv) the Parent or any Subsidiary may dispose of assets or property to any other Person; provided, that, the aggregate book or fair market value of all assets disposed (to a Person other than the Parent, a Borrower or any other wholly-owned Subsidiary) under this clause (iv) during any fiscal year of the Parent shall not exceed 15% of the total consolidated assets of the Parent and its consolidated Subsidiaries, determined in accordance with GAAP, measured as of the last day of the immediately preceding fiscal year for which financial statements have been or were required to be delivered pursuant to this Agreement,
(v) the Parent and its Subsidiaries may dispose of inventory in the ordinary course of business,
(vi) the Parent and its Subsidiaries may transfer assets in connection with a Financing Arrangement permitted under Section 6.03,
(vii) the Parent or any Subsidiary may lease, as lessor or sublessor, or license, as licensor or sub licensor, real or personal property (other than any intellectual property) in the ordinary course of business, provided that no such lease or license shall materially interfere with the ordinary course of business of the Parent or any Subsidiary,
(viii) the Parent or any Subsidiary may liquidate or sell Consolidated Cash and Cash Equivalents,
(ix) the Parent or any Subsidiary may, in the ordinary course of business, licence or sublicense intellectual property owned or held by the Parent or such Subsidiary so long as each such license is non-exclusive and in the ordinary course of business,
(x) the Parent or any Subsidiary may dispose of obsolete or worn out property, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreement.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business reasonably related, incidental or ancillary thereto or that is a reasonable extension thereof.
(c) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, and may dispose of property no longer used or useful in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement Parent or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; andSubsidiary,
(xi) the Parent or any Subsidiary may sell Receivable Assets to a Securitization Entity in addition to a Qualified Securitization Transaction for the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiariesfair market value thereof; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause at no time shall more than US$2,500,000,000 (xior its equivalent in another currency or currencies) shall be made for in fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair market value of more than $50,000,000, then at least 75% assets be subject to such Qualified Securitization Transaction,
(xii) any Subsidiary may pay dividends or make any other distribution,
(xiii) the Parent may pay cash dividends (or dividends paid in the form of common equity of the consideration therefor Parent) to its shareholders, to the extent lawful; provided that the Parent shall be in not pay any cash or cash equivalents. The term “Substantial Portion” meansdividends on its common equity unless the Leverage Ratio, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets calculated as of the last day of the last month before most recently ended Test Period in accordance with Section 6.04 and on a pro forma basis giving effect to such cash dividend and any other cash dividends made since the start end of the applicable Calculation last Test Period, does not exceed 4.75x and so long as no Event of Default has occurred and is continuing (or would result therefrom) (it being understood and agreed that this proviso shall not restrict any dividends to the holders of the Parent’s preferred equity, including the Parent’s mandatory convertible preferred shares, or dividends paid in the form of common equity of the Parent), and
(xiv) any Subsidiary may liquidate or dissolve (with any residual assets being applied in accordance with one of the other clauses of this Section 6.01).
Appears in 1 contract
Samples: Senior Unsecured Revolving Credit Agreement (Teva Pharmaceutical Industries LTD)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into into, consolidate with, or consolidate with otherwise be acquired by, any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose (including pursuant to a Sale and Leaseback Transaction) of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter here-after acquired, and for purposes hereof, any capital stock issued by the Borrower which is held by the Borrower as treasury stock shall not be deemed to be property or an asset of the Borrower and shall not be subject to this Section 6.03), or liquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person Subsidiary may merge into the Borrower a Loan Party in a transaction in which the surviving entity is or becomes a Loan Party (provided that any such merger involving the Borrower is must result in the Borrower as the surviving corporation;
entity), (ii) any Restricted wholly-owned Subsidiary may merge into (i) or consolidate with any wholly-owned Subsidiary in a transaction in which the surviving entity is a wholly-owned Subsidiary and no Person other than the Borrower or a wholly-owned Subsidiary receives any consideration, provided that if any such merger described in this clause (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is shall involve a Loan Party is merging with a Restricted SubsidiaryParty, the Loan Party surviving entity of such merger shall be the surviving entity);
or shall become a Loan Party, (iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower a Loan Party or any Restricted Subsidiary; provided that if a transferor in such wholly-owned Subsidiary pursuant to a transaction is a Loan Partynot otherwise prohibited under this Agreement, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, (v) the Borrower and may merge with any other Person so long as the Borrower is not materially disadvantageous to the Lenders;
surviving entity, (vi) any Subsidiary may merge with any other Person so long as the Borrower and surviving entity is, in the Restricted Subsidiaries may dispose of property and assets, including Equity Interests case of a SubsidiarySubsidiary Guarantor, either directly or through the Subsidiary Guarantor, and in all other cases, a merger or consolidation, to the extent permitted by clause (c) of this Section; and
wholly-owned Subsidiary and (vii) so long as no Default exists or would result therefrom, any Subsidiary other than a Subsidiary Guarantor may merge into, Borrower or consolidate with any Subsidiary may dispose of all or substantially all of the stock of any of its Subsidiaries other than a Material Subsidiary to, and Borrower or any Subsidiary may dispose of assets to, any other Person that is not so long as Borrower delivers a Restricted Subsidiary; provided that (i) such Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered certificate to the Administrative Agent an officer’s certificate stating that demonstrating pro forma compliance with Section 6.05 after giving effect to such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementtransaction.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and will not permit any of the Restricted its Subsidiaries to, sell, transfer, lease change its fiscal year to end on a day other than as such fiscal year end is currently determined or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of change the Borrower, is not material to the conduct ’s method of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Perioddetermining fiscal quarters.
Appears in 1 contract
Samples: Credit Agreement (NetApp, Inc.)
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all of its assetsassets (including pursuant to a Sale/Leaseback Transaction), or all or substantially all any of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i) (x) any Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
corporation and (iiy) any Restricted Subsidiary may merge into (i) the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transferliquidate, sell and/or pledge Permitted Receivables Related Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));
(v) any Restricted Subsidiary may liquidate dissolve or dissolve if wind up its affairs so long as the Borrower determines in good faith that such liquidation liquidation, dissolution or dissolution winding up is in the best interests interest of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders;
(viii) any (x) Person (other than the Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is such Restricted Subsidiary (provided that any such merger or consolidation involving a Subsidiary Guarantor must result in the surviving entity remaining or becoming a Subsidiary Guarantor) and any (y) non-Loan Party may merge into or consolidate with the Borrower or any Subsidiary of the Borrower (provided that any such merger or consolidation involving a Subsidiary Guarantor must result in the surviving entity remaining or becoming a Subsidiary Guarantor);
(iii) any Restricted Subsidiary (other than the Borrower) may merge into or consolidate with any Person in a transaction permitted under clauses (xi) and (xiii) hereunder in which the surviving entity is not a Subsidiary;
(iv) any Restricted Subsidiary (other than the Borrower) may Dispose of any or all of its assets (upon voluntary liquidation, dissolution or otherwise) to the Borrower or any other Restricted Subsidiary (except that a Loan Party may only Dispose of its assets under this clause (a)(iv) to the Borrower or another Loan Party);
(v) sales, transfers and other Dispositions of inventory in the ordinary course of business, used, worn out, obsolete or surplus property and cash and Cash Equivalents in the ordinary course of business, and the assignment, cancellation, abandonment or other Disposition of Intellectual Property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or necessary in the conduct of the business of the Borrower and the Restricted Subsidiaries may dispose of property and assetsSubsidiaries, taken as a whole;
(vi) (x) Dispositions (including Equity Interests of a Subsidiary, either directly Subsidiaries) or through a merger or consolidation, exclusive licenses to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists Borrower or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) any such Disposition or exclusive license made by a Loan Party to a Restricted Subsidiary Guarantor that is not a Loan Party shall be the continuing or surviving entity or made in compliance with Section 7.04 and (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) Equity Interests of a Loan Party may not be transferred to a Subsidiary that is not such Subsidiary Guarantor, a Loan Party or (Ay) Dispositions by the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia Borrower or any territory thereofRestricted Subsidiary to any Subsidiary that is not a Restricted Subsidiary in an amount not to exceed $10,000,000 per fiscal year;
(vii) (x) Dispositions or the discount or sale, (B) in each case without recourse, of receivables arising in the Successor Company shall expressly assume all the obligations ordinary course of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentbusiness, and (Cy) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(viii) leases, subleases, licenses or sublicenses of property to other Persons in the ordinary course of business not materially interfering with the business of the Borrower and the Restricted Subsidiaries taken as a whole;
(ix) subject to Section 2.08(b)(ii), dispositions of property as a result of a Casualty Event involving such property or any disposition of real property to a Governmental Authority as a result of a Condemnation of such real property;
(x) Dispositions of investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(xi) Dispositions of assets or Equity Interests; provided that (i) the consideration received for such assets or Equity Interests shall be in an amount at least equal to the fair market value thereof (determined by a Responsible Officer or, for any Disposition in reliance on this Section 7.03(a)(xi) of assets in one transaction or a series of related transactions with Net Cash Proceeds in excess of $5,000,000, in good faith by the Board of Directors of the Borrower) and no less than 75% thereof shall be paid in cash or Cash Equivalents, (ii) the Net Cash Proceeds of such Dispositions do not exceed an aggregate amount of $200,000,000, (iii) such Subsidiary Guarantor Dispositions are consummated within eighteen (18) months following the Closing Date and (iv) no Event of Default shall have delivered occurred or be continuing or result therefrom;
(xii) the surrender, waiver or settlement of contractual rights or claims and litigation claims in the ordinary course of business;
(xiii) Dispositions of Equity Interests in any Subsidiary acquired in connection with a Permitted Acquisition, in each case pursuant to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or the exercise of warrants, options or other securities convertible into or exchangeable for the Equity Interests of such Subsidiary, so long as such rights, plans, warrants, options or other securities were not entered into or issued in connection with or in contemplation of such Person becoming a Subsidiary;
(xiv) Transactions permitted under Section 7.02, 7.04 and 7.06, in each case, solely to the Administrative Agent extent constituting Dispositions hereunder;
(xv) Permitted Restructuring Transactions;
(xvi) other Dispositions of assets or Equity Interests; provided that (i) the consideration received for such assets or Equity Interests shall be in an officer’s certificate stating that such merger or consolidation and such supplement amount at least equal to the fair market value thereof (determined by a Responsible Officer or, for any Disposition in reliance on this Section 7.03(a)(xvi) of assets in one transaction or a series of related transactions with Net Cash Proceeds in excess of $5,000,000, in good faith by the Board of Directors of the Borrower) and no less than 75% thereof shall be paid in cash or Cash Equivalents, (ii) the Net Cash Proceeds of such Dispositions do not exceed an aggregate amount of $10,000,000 in any calendar year and (iii) no Event of Default shall have occurred or be continuing or result therefrom; and
(xvii) Dispositions of fixed or capital assets and related property in connection with Indebtedness permitted under Section 7.01 for the purpose of financing such fixed or capital assets and related property or a lease of such assets by the Borrower or any Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementas a lessee or debtor.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, to engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries (including the Acquired Business and its Subsidiaries, after giving effect to the consummation of the Acquisition) on the date of execution of this Agreement and any business businesses reasonably related, incidental complementary, incidental, or ancillary thereto or that is a similar or complementary thereto or reasonable extension extensions thereof.
(c) The Borrower will not, and nor will not it permit any of the its Restricted Subsidiaries to, sellchange its fiscal year from the basis in effect on the Closing Date; provided, transferhowever, lease or otherwise dispose of any of its property or assets, including any Equity Interests owned by it (it being understood that the grant or existence of a Lien on any property shall not constitute a saleLoan Parties and Restricted Subsidiaries may, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property upon written notice to the Borrower or a Restricted Subsidiary; provided that Administrative Agent, change their respective fiscal years to any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures fiscal year reasonably acceptable to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business whichAdministrative Agent, in which case, at the reasonable good faith determination request of the BorrowerAdministrative Agent, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this clause (xi) during the twelve-month period ending with the month Agreement that are necessary to reflect such change in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation Periodfiscal year.
Appears in 1 contract
Fundamental Changes and Asset Sales. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all any substantial part of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Restricted Subsidiary may merge into (i) any other Subsidiary in a transaction in which the Borrower or (ii) one or more Restricted Subsidiaries (provided that when a Restricted Subsidiary that surviving entity is a Loan Party is merging with a Restricted Subsidiary, the Loan Party shall be the surviving entity);
(iii) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Restricted to another Subsidiary; provided that if a transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party;
(iv) the Borrower or any Subsidiary may transfer, sell and/or pledge Permitted Receivables Related Facility Assets under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount permitted under Section 6.01(h));Facilities; and
(v) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(vi) the Borrower and the Restricted Subsidiaries may dispose of property and assets, including Equity Interests of ; provided that any such merger involving a Subsidiary, either directly or through a merger or consolidation, to the extent permitted by clause (c) of this Section; and
(vii) so long as no Default exists or would result therefrom, a Subsidiary Guarantor may merge or consolidate with any other Person that is not a Restricted Subsidiary; provided that (i) such wholly owned Subsidiary Guarantor shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any immediately prior to such merger or consolidation (any such Person, the “Successor Company”) is shall not such Subsidiary Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Subsidiary Guarantor under the Subsidiary Guaranty and the other Loan Documents to which the Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) such Subsidiary Guarantor shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to the Subsidiary Guaranty comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Subsidiary Guarantor under this Agreementpermitted unless also permitted by Section 6.03.
(b) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and any business businesses reasonably related, incidental or ancillary thereto or that is a reasonable extension thereofrelated thereto.
(c) The Borrower will not, and nor will not it permit any of the Restricted its Subsidiaries to, sell, transfer, lease or otherwise dispose of any of change its property or assets, including any Equity Interests owned by it (it being understood that fiscal year from the grant or existence of a Lien basis in effect on any property shall not constitute a sale, transfer, lease or other disposition of such property), except:
(i) dispositions or sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the ordinary course of business;
(ii) as long as no Default exists or would result therefrom, sales, transfers, leases and other dispositions of property Effective Date except upon written notice given to the Borrower or a Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary shall be made in compliance with Section 6.06;
(iii) any transaction permitted under Section 6.03(a), any Investment permitted under Section 6.04 or any Restricted Payment permitted under Section 6.07;
(iv) the disposition or sale of accounts receivable pursuant to a Permitted Receivables Facility permitted by Section 6.01(h);
(v) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements or rights of first refusal between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(vi) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(vii) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(viii) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind in the ordinary course of business;
(ix) dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(x) the unwinding or termination of any Swap Agreements; and
(xi) in addition to the dispositions permitted by the other clauses of this Section 6.03(c), leases, sales or other dispositions of property, either directly or through a merger or consolidation, that, together with all other property of the Borrower and the Restricted Subsidiaries previously disposed of pursuant to this clause (xi) during the twelve-month period ending with the month in which any such other disposition occurs (the “Calculation Period”), do not constitute a Substantial Portion of the property of the Borrower and the Restricted Subsidiaries; provided that all sales, transfers, leases and other dispositions of property made pursuant to this clause (xi) shall be made for fair value and, if the sale, transfer, lease or disposition in question, involves assets that have a fair value of more than $50,000,000, then at least 75% of the consideration therefor shall be in cash or cash equivalents. The term “Substantial Portion” means, on any date, property with a net book value that represents more than 15% of the Consolidated Total Assets as of the last day of the last month before the start of the applicable Calculation PeriodAdministrative Agent.
Appears in 1 contract
