Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except: (a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary. (b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution; (c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”; (d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a); (e) disposals of obsolete, worn out or surplus property; (f) disposals of leased or financed automobiles in the ordinary course of business; (g) Permitted Acquisitions; (h) Reinvestments permitted under Section 2.14(a) or (b); and (i) Investments made in accordance with Section 6.7.
Appears in 4 contracts
Samples: First Lien Loan and Guaranty Agreement (Reliant Pharmaceuticals, Inc.), Third Lien Loan and Guaranty Agreement (Reliant Pharmaceuticals, Inc.), Third Lien Loan and Guaranty Agreement (Reliant Pharmaceuticals, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any Acquisition or transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or make any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquiredAsset Sale, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, inventory and materials and the acquisition of equipment and Capital Expenditures capital expenditures in the ordinary course of business, subject to Section 8.9) the business, property or fixed assets of, or stock Capital Stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company the Borrower may be merged with or into Company the Borrower or any Guarantor other Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or any Guarantor Subsidiaryother Credit Party; provided, (i) in the case of such a merger, Company (i) if the Borrower is party to the merger, the Borrower shall be the continuing or surviving Person and (ii) if any Guarantor is the party to such merger, then a Guarantor Subsidiary, as applicable shall be the continuing or surviving Person;
(b) Asset Sales, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) so long as no Default or Event of Default shall have occurred then exists or be continuing either before or after giving effect thereto, would result from any such Asset Sale and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, the consideration received for the assets subject to such assets shall be Asset Sale is in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Company the applicable Credit Party (or similar governing body)); provided, (2) each of the Credit Parties acknowledges and agrees that no less than 80% thereof proceeds of any such Asset Sale permitted hereunder shall be paid used to make Restricted Payments other than in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS compliance with Sections 8.4 and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b8.8(f); and
(ic) Investments made in accordance with Section 6.78.6 and the subsequent sale or other disposition of such Investments (so long the consideration received for such Investments subject to such sale or other disposition is in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the applicable Credit Party (or similar governing body)); provided, each of the Credit Parties acknowledges and agrees that no proceeds of any such sale or other disposition permitted hereunder shall be used to make Restricted Payments other than in compliance with Sections 8.4 and 8.8(f).
Appears in 4 contracts
Samples: Credit Agreement (Physicians Realty Trust), Credit Agreement (Healthpeak Properties, Inc.), Credit Agreement (Healthpeak Properties, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger merger, amalgamation, arrangement, reorganization or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property business or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Borrower may be (i) merged or amalgamated with or merged into Company Borrower or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part other Subsidiary of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor SubsidiaryBorrower; provided, provided that (iA) in the case of such a mergermerger or amalgamation involving Borrower, Company or such Guarantor Subsidiary, as applicable Borrower shall be the continuing surviving Person or a Person that continues as an amalgamated corporation and (B) in the case of such a merger or amalgamation involving any other Guarantor (and not involving Borrower), the surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such actionor a Person that continues as an amalgamated corporation, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect theretoa Guarantor, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation other than with respect to Borrower, liquidated, wound up or dissolved if Borrower determines in good faith that such liquidation, winding up or dissolution is in the best interest of the Company, each as determined in good faith Borrower and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders;
(b) sales or other dispositions of assets or property that do not constitute Asset Sales (which sales or other dispositions may take the form of a merger, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionamalgamation or similar transaction);
(c) sales Asset Sales (which Asset Sale may take the form of a merger, amalgamation or similar transaction), the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $200,000,000 (iwith the amount for any Fiscal Year increased by an amount equal to the excess, if any, of such amount for the immediately preceding Fiscal Year over the amount of proceeds from Asset Sales made pursuant to this clause (c) in such immediately preceding Fiscal Year), (ii) and (iii) of the definition of “Asset Sale”;; provided that
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company Borrower (or similar governing body)) of Borrower or the applicable Subsidiary or Credit Party for Asset Sales with a fair market value in excess of $75,000,000), (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals Asset Sales consisting of obsolete, worn out or surplus assets or property, including, for greater certainty, Intellectual Property;
(e) Asset Sales consisting of sale and leaseback transactions permitted by Section 6.10; provided that the Net Asset Sale Proceeds in excess of $50,000,000 from any such Asset Sale shall be applied as required by Section 2.14(a);
(f) disposals of leased or financed automobiles in Specified Asset Disposition; provided that the ordinary course of businessNet Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Permitted AcquisitionsAsset Sales of property to the extent that (i) such property is concurrently exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Asset Sales are promptly applied to the purchase price of such replacement property;
(h) Reinvestments Permitted Acquisitions (which acquisition may take the form of a merger, amalgamation or similar transaction so long as such merger, amalgamation or similar transaction would be permitted by clause (a) of this Section 6.8 if the acquired Person was, initially, a Subsidiary of Borrower); provided that (x) in respect of acquisitions of assets that are not or have not become subject to the Collateral Documents and/or acquisitions of Equity Interests of Persons (other than Excluded Subsidiaries) that do not become Guarantors or are not owned by a Credit Party, the consideration (other than Equity Interests of Borrower issued in payment of a portion of such consideration and the net proceeds of the issuance of Equity Interests of Borrower to the extent used to pay a portion of such consideration) shall not exceed, collectively with any Investments then outstanding under Section 2.14(a6.6(d)(ii) or in Persons other than Credit Parties, $200,000,000 per Fiscal Year and (b); andy) immediately prior to such Permitted Acquisition and on a Pro Forma Basis after giving effect thereto, Borrower and its Subsidiaries shall be in compliance with each of the covenants set forth in Section 6.7 as of the last day of the most recently ended Fiscal Quarter;
(i) Investments made in accordance with Section 6.76.6, other than pursuant to clause (g) thereof (which Investment may take the form of a merger, amalgamation or similar transaction so long as such merger, amalgamation or similar transaction would be permitted by clause (a) of this Section 6.8 if the acquired Person was, initially, a Subsidiary of Borrower);
(j) Liens incurred in compliance with Section 6.2;
(k) 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 Borrower; provided that any Net Asset Sale Proceeds from any such disposition shall be applied as required by Section 2.14(a);
(l) the disposition by Dow Pharmaceutical Sciences, Inc. of its Equity Interests in Bioskin GmbH, a company with limited liability organized under the laws of Germany; provided that any Net Asset Sale Proceeds from any such disposition shall be applied as required by Section 2.14(a);
(m) Asset Sales in connection with any Acquisition, for regulatory reasons; provided that any Net Asset Sale Proceeds therefrom shall be applied as required by Section 2.14(a);
(n) the Acquisitions; and
(o) Asset Sales by Sanitas AB of real property; provided that any Net Asset Sale Proceeds from any such disposition shall be applied as required by Section 2.14(a); For purposes of clause (c) of this Section 6.8, each of the following will be deemed Cash:
(i) any liabilities, as shown on Borrower’s most recent consolidated balance sheet, of Borrower or any of its Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Loans) that are assumed by the transferee of any such assets pursuant to an agreement that releases Borrower or such Subsidiary from further liability;
(ii) any securities, notes or other obligations received by Borrower or any such Subsidiary from such transferee that are converted by Borrower or such Subsidiary into Cash within 180 days after the consummation of the applicable Asset Sale, to the extent of the Cash received in that conversion; and
(iii) any Designated Noncash Consideration having an aggregate fair market value that, when taken together with all other Designated Noncash Consideration previously received and then outstanding, does not exceed at the time of the receipt of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value) the greater of $100,000,000 or 1.00% of Consolidated Total Assets.
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, transactions all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, substantially all property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of the Company may be merged with or into the Company or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets or the Equity Interests issued by it may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions, to the Company or any Guarantor; provided, in the case of such a merger, the Company or such Guarantor, as applicable shall be the continuing or surviving Person; (ii) any Massachusetts securities corporation may be merged with or into any other Massachusetts securities corporation, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets or the Equity Interests issued by it may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions, to any other Massachusetts securities corporation or any U.S. Loan Party; and (iii) any Subsidiary that is not a Loan Party may be merged with or into any other Subsidiary, or be liquidated, wound up or dissolved, or its issued Equity Interests or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed Disposed of, in one transaction or a series of transactions, transactions to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor other Subsidiary.
(b) any Subsidiary (sales, licenses, leases or other than the Company) (i) Dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses Asset Sales; provided (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Board of directors Directors of the Company (or similar governing body)), (2ii) no less than 8070% thereof shall be paid in Cash; provided that for the purpose of this clause (ii), the following shall be deemed to be Cash: (A) any securities received by the Company or such Subsidiary that are converted by the Company or such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received in such conversion) within 180 days following the closing of the applicable Asset Sale, (B) any Designated Non-Cash Consideration in respect of such Asset Sale having an aggregate fair market value, taken together with the Designated Non-Cash Consideration in respect of all such Asset Sales, not to exceed at any time the greater of $200,000,000 and 3% of Total Assets and (C) any liabilities (as shown on the date Company’s then-most recent balance sheet provided hereunder or in the footnotes thereto) of such sale or within six months thereafterthe Company and/or any of its Subsidiaries (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which the Company and the applicable Subsidiaries shall have been validly released by all applicable creditors in writing, excluding any sales of Axid® OS and (3iii) the Net Asset Sale Proceeds thereof shall be applied as required by or otherwise used in accordance with Section 2.14(a2.05(c)(i) and (iv) at the time of such Asset Sale, no Default or Event of Default shall have occurred and be continuing or would result therefrom (it being understood and agreed that the proceeds of such Asset Sales shall be valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds);
(ed) disposals Disposals of obsolete, worn out or surplus propertyproperty or damaged property no longer useful in the business of the Company and its Subsidiaries (including without limitation, in connection with scheduled maintenance);
(f) disposals of leased or financed automobiles in the ordinary course of business;
(ge) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made or owned in accordance with Section 7.06 and Sale and Leaseback Transactions made in accordance with Section 6.77.09;
(g) (i) the abandonment of rights, franchises, licenses, trade names, copyrights, patents, trademarks or other Intellectual Property that are, in the reasonable judgment of the Company, either no longer economically practicable to maintain or no longer material in the conduct of the business of the Company and its Subsidiaries taken as a whole, (ii) the transfer of Intellectual Property rights (including Permitted Licenses) in settlement of any dispute or litigation with governmental regulatory authorities or otherwise necessary to comply with any legal or regulatory requirement, (iii) the transfer of Intellectual Property rights (including Permitted Licenses) to third parties in settlement of any dispute or litigation with third parties and (iv) the transfer, sale or other disposition of non-core Intellectual Property, which, in the case of clauses (i), (iii) and (iv), does not materially interfere with the conduct of the Company’s or any of its Subsidiaries’ business as conducted on the Restatement Date (or as permitted by Section 7.11) or materially detract from the value thereof;
(h) sales to a Receivables Entity or transfers by a Receivable Entity of accounts receivable and related assets of the type specified in the definition of “Qualified Receivables Transaction”;
(i) (x) to the extent allowable under Section 1031 of the Code, any exchange of like-kind property (excluding any boot thereon) for use in any business or lines of business in which the Company and/or its Subsidiaries are engaged as of the Restatement Date (or as permitted by Section 7.11) and (y) or any other exchange for replacement property or for credit to purchase similar replacement property provided that, in each case, to the extent the property exchanged is Collateral, such replacement property shall constitute Collateral;
(j) sales, licenses, leases or other Dispositions of property to the Company or a Subsidiary; provided that if the transferor of such property is a U.S. Loan Party either (i) the transferee thereof must be a U.S. Loan Party, (ii) such sale, license, lease or other Disposition must be for fair market value or (iii) such transaction shall constitute an Investment and must be permitted by Section 7.06;
(k) the unwinding of any Hedge Agreement or Swap Obligations;
(l) sales, transfers and other 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, which do not materially interfere with the conduct of the business of the Company and its Subsidiaries;
(m) the creation of a Lien permitted under Section 7.02 (other than 7.02(w));
(n) dispositions of Investments or accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(o) the sale, discount or other Disposition of accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(p) the taking of any Real Estate Asset by any Person pursuant to the power of eminent domain, condemnation or otherwise; provided that any Net Insurance/ Condemnation Proceeds realized by the Company or any of its Subsidiaries in connection with such taking are applied or otherwise used in accordance with Section 2.05(c)(ii), if applicable;
(q) Dispositions of assets not used or useful in the business of the Company and its Subsidiaries acquired in connection with (i) any Permitted Acquisition or any other acquisition or Investment permitted under this Agreement within 180 days thereof and (ii) any Prior Acquisition (it being understood and agreed that (x) Cash and Cash Equivalents shall not constitute non-core assets and (y) Acquired Non-Investment Grade Securities shall constitute non-core assets); provided that, in regards to any Permitted Acquisition, Prior Acquisition or other acquisition constituting an Investment, the aggregate amount of assets disposed of pursuant to this clause (q) shall not exceed the greater of (x) 20% of the net purchase price of such Permitted Acquisition, Prior Acquisition or other acquisition constituting an Investment, as applicable and (y) 1% of Total Assets;
(r) (i) any leases or subleases of any Real Estate Asset permitted by Section 7.02 and (ii) Dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(s) the abandonment, termination or lapse of rights, franchises, licenses and permits to the extent permitted by Section 6.02;
(t) Dispositions of mutual funds and other Investments permitted to be made pursuant to Section 7.06(w);
(u) Restricted Junior Payments permitted by Section 7.04 to the extent constituting a Disposition or Asset Sale; and
(v) the Permitted Gen-Probe Asset Sale. For the avoidance of doubt, the formation of a Subsidiary, in and of itself, shall be permitted under this Section 7.08 hereof provided that any capitalization or other initial or subsequent Investment in connection therewith shall be subject to Section 7.06 hereof.
Appears in 2 contracts
Samples: Refinancing Amendment (Hologic Inc), Credit and Guaranty Agreement (Hologic Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), ) and (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Reliant Pharmaceuticals, Inc.), Credit and Guaranty Agreement (Reliant Pharmaceuticals, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)lease, enter into an Exclusive IP License, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquiredacquired or leased, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Borrower may be merged with or into Company Borrower or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company Borrower or such Guarantor Subsidiary, as applicable applicable, shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Borrower may permit another Person to merge or consolidate with Borrower or a Subsidiary (other than the Company) (i) in order to effect a Permitted Acquisition that is no longer useful in permitted hereunder (provided that the business of surviving entity is the Company Borrower or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutiona wholly-owned Subsidiary);
(c) sales sales, transfers or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset SalesSales (including Exclusive IP Licenses), providedthe proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $50,000,000; provided (other than in the case of Exclusive IP Licenses that are not fully paid)
(1) except with respect to the licensing of property in the ordinary course of business, 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 an Authorized Officer of directors of Company (or similar governing body)Borrower), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals Permitted Acquisitions, the Acquisition Consideration for which constitutes (i) less than $125,000,000 in the aggregate in any Fiscal Year and (ii) less than $200,000,000 in the aggregate from the Closing Date to the date of leased determination; provided, in respect of acquisition targets not domiciled within the United States, the consideration for such Persons or financed automobiles assets shall not exceed more than $50,000,000 per Fiscal Year;
(g) Investments made in accordance with Section 6.6;
(h) sales, transfers and dispositions to Borrower or a Subsidiary; provided that, any such sales, transfers or dispositions involving a Subsidiary that is not a Credit Party shall be made in compliance with Section 6.11;
(i) sales of any fixed or capital assets pursuant to a sale-leaseback transaction in compliance with clause (a) of Section 6.10;
(j) licenses or sublicenses of Intellectual Property of a Credit Party or any of its Subsidiaries (other than Exclusive IP Licenses) entered into in the ordinary course of business, or not interfering in any respect with the ordinary conduct of, or not materially detracting from the value of, the business of Borrower or such Subsidiary;
(k) terminations of leases in the ordinary course of business;
(gl) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) leases, subleases, licenses and sublicenses of real or (b)personal property entered into by Credit Parties and their Subsidiaries in the ordinary course of business; and
(im) Investments made sales of non-core assets acquired in accordance connection with Section 6.7Permitted Acquisitions.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Bz Intermediate Holdings LLC), Credit and Guaranty Agreement (Boise Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)lease, enter into an Exclusive IP License, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquiredacquired or leased, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Borrower may be merged with or into Company Borrower or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company Borrower or such Guarantor Subsidiary, as applicable applicable, shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Borrower may permit another Person to merge or consolidate with Borrower or a Subsidiary (other than the Company) (i) in order to effect a Permitted Acquisition that is no longer useful in permitted hereunder (provided that the business of surviving entity is the Company Borrower or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutiona wholly-owned Subsidiary);
(c) sales sales, transfers or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset SalesSales (including Exclusive IP Licenses), providedthe proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $57,500,000; provided (other than in the case of Exclusive IP Licenses that are not fully paid)
(1) except with respect to the licensing of property in the ordinary course of business, 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 an Authorized Officer of directors of Company (or similar governing body)Borrower), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals Permitted Acquisitions, the Acquisition Consideration for which constitutes (i) less than $143,750,000 in the aggregate in any Fiscal Year and (ii) less than $230,000,000 in the aggregate from the Closing Date to the date of leased determination; provided, in respect of acquisition targets not domiciled within the United States, the consideration for such Persons or financed automobiles assets shall not exceed more than $57,500,000 per Fiscal Year;
(g) Investments made in accordance with Section 6.6;
(h) sales, transfers and dispositions to Borrower or a Subsidiary; provided that, any such sales, transfers or dispositions involving a Subsidiary that is not a Credit Party shall be made in compliance with Section 6.11;
(i) sales of any fixed or capital assets pursuant to a sale-leaseback transaction in compliance with clause (a) of Section 6.10;
(j) licenses or sublicenses of Intellectual Property of a Credit Party or any of its Subsidiaries (other than Exclusive IP Licenses) entered into in the ordinary course of business, or not interfering in any respect with the ordinary conduct of, or not materially detracting from the value of, the business of Borrower or such Subsidiary;
(k) terminations of leases in the ordinary course of business;
(gl) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) leases, subleases, licenses and sublicenses of real or (b)personal property entered into by Credit Parties and their Subsidiaries in the ordinary course of business; and
(im) Investments made sales of non-core assets acquired in accordance connection with Section 6.7Permitted Acquisitions.
Appears in 2 contracts
Samples: Second Lien Credit and Guaranty Agreement (Bz Intermediate Holdings LLC), Second Lien Credit and Guaranty Agreement (Boise Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, transactions all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, substantially all property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of Company the Borrower may be merged with or into Company the Borrower or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed Disposed of, in one transaction or a series of transactions, to Company the Borrower or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company the Borrower or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, ; (ii) Company gives the Agents ten days’ prior written notice any Massachusetts securities corporation may be merged with or into any other Massachusetts securities corporation, or be liquidated, wound up or dissolved, or all or any part of such actionits business, property or assets may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions, to any other Massachusetts securities corporation; and (iii) no Default any Subsidiary that is not a Credit Party may be merged with or Event of Default shall have occurred into any other Subsidiary, or be continuing either before liquidated, wound up or after giving effect theretodissolved, and or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions to any other Subsidiary (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor other than an Excluded Subsidiary.);
(b) any Subsidiary (sales, licenses, leases or other than the Company) (i) Dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses the case of other non-Cash proceeds) (i), ) are less than $50,000,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than the sum of (x) $100,000,000 and (iiiy) an amount equal to the lesser of (A) any unused portion of the definition of “Asset Sale”;
basket provided for in this clause (dii) Asset Sales, provided, from the immediately prior Fiscal Year and (1B) except with respect to the licensing of property in the ordinary course of business, $100,000,000; provided (A) 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 Company the Borrower (or similar governing body)), (2B) no less than 8070% thereof shall be paid in Cash; provided that for the purpose of this clause (B), the following shall be deemed to be Cash: (1) any securities received by the Borrower or such Subsidiary that are converted by the Borrower or such Subsidiary into Cash on or Cash Equivalents (to the date extent of the Cash or Cash Equivalents received in such conversion) within 180 days following the closing of the applicable Asset Sale and (2) any Designated Non-Cash Consideration in respect of such sale or within six months thereafterAsset Sale having an aggregate fair market value, excluding taken together with the Designated Non-Cash Consideration in respect of all such Asset Sales, not to exceed at any sales time the greater of Axid® OS $100,000,000 and 1% of Total Assets, (3C) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)) and (D) at the time of such Asset Sale, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(ed) disposals Disposals of obsolete, worn out or surplus propertyproperty or damaged property no longer useful in the business of the Borrower and its Subsidiaries;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(ge) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made in accordance with Section 6.76.06 and Sale and Leaseback Transactions made in accordance with Section 6.09;
(g) (i) the abandonment of rights, franchises, licenses, trade names, copyrights, patents, trademarks or other Intellectual Property that are, in the reasonable judgment of the Borrower, either no longer economically practicable to maintain or no longer useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole, (ii) the transfer of Intellectual Property rights (including Permitted Licenses) in settlement of any dispute or litigation with governmental regulatory authorities or otherwise necessary to comply with any legal or regulatory requirement, (iii) the transfer of Intellectual Property rights (including Permitted Licenses) to third parties in settlement of any dispute or litigation with third parties and (iv) the transfer, sale or other disposition of non-core Intellectual Property, which, in the case of clauses (i), (iii) and (iv), does not materially interfere with the conduct of the Borrower’s or any of its Subsidiaries’ business as conducted on the Closing Date (or as permitted by Section 6.11) or materially detract from the value thereof;
(h) sales to a Receivables Entity or transfers by a Receivable Entity of accounts receivable and related assets of the type specified in the definition of “Qualified Receivables Transaction”;
(i) to the extent allowable under Section 1031 of the Internal Revenue Code, any exchange of like-kind property (excluding any boot thereon) for use in any business or lines of business in which the Borrower and/or its Subsidiaries are engaged as of the Closing Date (or as permitted by Section 6.11); provided that to the extent the property exchanged is Collateral, such replacement property shall constitute Collateral;
(j) sales, licenses, leases or other Dispositions of property to the Borrower or a Subsidiary; provided that if the transferor of such property is a Credit Party either (i) the transferee thereof must be a Credit Party, (ii) such sale, license, lease or other Disposition must be for fair market value or (iii) such transaction shall constitute an Investment and must be permitted by Section 6.06;
(k) the unwinding of any Hedge Agreement;
(l) sales, transfers and other 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, which do not materially interfere with the conduct of the business of the Borrower and its Subsidiaries;
(m) the creation of a Lien permitted under Section 6.02 (other than 6.02(w));
(n) dispositions of Investments or accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(o) the sale, discount or other Disposition of accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(p) the taking of any Real Estate Asset by any Person pursuant to the power of eminent domain, condemnation or otherwise; provided that any Net Insurance/Condemnation Proceeds realized by the Borrower or any of its Subsidiaries in connection with such taking are applied in accordance with Section 2.14(b), if applicable;
(q) the sale or other Disposition of (i) any assets of the Acquired Business or any of its Subsidiaries, to the extent such assets were owned by the Acquired Business or any such Subsidiary at the time of the Acquisition and were not acquired in contemplation thereof, in an aggregate amount not to exceed $50,000,000 and (ii) any Acquired Business Non-Core Assets;
(r) the sale or other Disposition of Acquired Non-Investment-Grade Securities; and
(s) the abandonment, termination or lapse of rights, franchises, licenses and permits to the extent permitted by Section 5.02.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Hologic Inc), Credit and Guaranty Agreement (Gen Probe Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries or the European Group Members to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned U.S. Subsidiary of Company U.S. Holdings or a Guarantor may be merged with or into Company Borrower or any Guarantor SubsidiaryGuarantor, as the case may be, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company Borrower, or such Guarantor SubsidiaryGuarantor, as applicable applicable, shall be the continuing or surviving Person and any Non-U.S. Subsidiary may be merged with or into any European Group Member, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any European Group Member; provided, (1) any European Group Member, as the case may be, shall be the continuing, surviving or succeeding Person, or the transferee of the relevant business, property or assets, as the case may be, and (2) immediately after such transaction, the continuing, surviving or succeeding Person(s) or the transferee(s) shall (A) collectively, have a net worth (calculated on a pro forma basis) at least equal to the aggregate net worth of the applicable European Group Member, immediately prior thereto and (B) either (i) have freely distributable reserves at least equal to the aggregate of the freely distributable reserves of the applicable European Group Member immediately prior thereto, or (ii) Company gives the Agents ten days’ prior written notice be liable without limitation in respect of such actionits Obligations, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect theretoas applicable, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered as a Borrower and/or Guarantor Subsidiary.hereunder;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, providedthe proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $11,500,000; provided (1) except with respect to the licensing of property in the ordinary course of business, 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 Company Holdings (or similar governing body)), (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(fe) disposals Permitted Acquisitions, provided that the consideration for such acquisitions (other than the acquisition by a Credit Party of leased or financed automobiles all of the economic and voting Equity Interests of the Specified Target) shall constitute (i) less than $57,500,000 in the ordinary course aggregate in any Fiscal Year, and (ii) less than $172,500,000 in the aggregate from the Closing Date to the date of businessdetermination;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made in accordance with Section 6.76.6; and
(g) sales, assignments, leases, licenses, transfers, abandonment, cancellation or other dispositions of current or future assets (including without limitation Intellectual Property), in the ordinary course of business, consistent with the practices of the Credit Parties or any of their Subsidiaries prior to the date hereof.
Appears in 2 contracts
Samples: Second Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.), Second Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of Company Borrower may be merged with or into Company Borrower or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company Borrower or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, ; (ii) Company gives the Agents ten days’ prior written notice any Massachusetts securities corporation may be merged with or into any other Massachusetts securities corporation, or be liquidated, wound up or dissolved, or all or any part of such actionits business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Massachusetts securities corporation; and (iii) no Default any Foreign Subsidiary may be merged with or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and into any other Foreign Subsidiary (iv) provided that the Collateral Agent’s Liens in the Collateral surviving entity shall not be affected an Excluded Foreign Subsidiary), or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor other Foreign Subsidiary (other than an Excluded Foreign Subsidiary.);
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses the case of other non-Cash proceeds) (i), ) are less than $25,000,000 with respect to any single Asset Sale or series of related Asset Sales during any Fiscal Year and (ii) and (iii) when aggregated with the proceeds of all other Asset Sales made within the definition of “Asset Sale”;same Fiscal Year, are less than $50,000,000; provided
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company Borrower (or similar governing body)), (2) no less than 8070% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(ge) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made in accordance with Sections 6.4, 6.6 and 6.10;
(g) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under Section 6.8; provided that (i) at the time of such Disposition, no Default or Event of Default shall have occurred and be continuing or shall result from such Disposition, (ii) Borrower will be in compliance, on a pro forma basis after giving effect to such Disposition, with the financial covenants set forth in Section 6.7, (iii) for any four consecutive Fiscal Quarter periods, the aggregate of all property Disposed of in reliance on this clause (g) shall not constitute assets generating more than $10,000,000 of Consolidated Adjusted EBITDA for such period, as evidenced by a certificate of an Authorized Officer in form satisfactory to the Administrative Agent delivered concurrently with each such disposition, and (iv) the net proceeds thereof shall be calculated in the same manner as Net Asset Sale Proceeds and shall be applied to prepayment of the Obligations in accordance with Section 2.14(a), without regard to whether such disposition is an Asset Sale and provided that such proceeds shall not be reinvested in the business of the Borrower and its Subsidiaries;
(A) the abandonment of patents, trademarks or other Intellectual Property that are, in the reasonable judgment of the Borrower, either no longer economically practicable to maintain or no longer useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole and (B) non-exclusive licensing of Intellectual Property in the ordinary course of business consistent with past practice, which, in each case, do not interfere in any respect with the ordinary conduct of or materially detract from the value of the business of Borrower and the Subsidiaries.
(i) (A) as set forth on Schedule 6.8(i) or (B) with the consent of the Administrative Agent, the transfer or licensing of any non-core technology, or the licensing of any technology for an application not material to the business or operations of the Borrower and its Subsidiaries, to any Person; provided that at the time of such transfer, no Default or Event of Default shall have occurred and be continuing or shall result from such transfer or such licensing and after giving effect to such transfer or such licensing, the representations and warranties contained in Section 4.13 shall be true and complete in all material respects as of the date of such transfer or such licensing.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Hologic Inc), Credit and Guaranty Agreement (Hologic Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer transfer, divide or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of Company Holdings (other than the Borrower) may be merged or consolidated with or into Company the Borrower or any Guarantor SubsidiarySubsidiary (or into any Subsidiary of Holdings (other than the Borrower) or any other Person pursuant to a Permitted Acquisition permitted under Section 6.8(e) or an Investment permitted under Section 6.6 that will become a Guarantor Subsidiary upon consummation of such merger or consolidation), or all or any part of its business, property or assets may be liquidatedDisposed of, wound up in one transaction or dissolveda series of transactions, to the Borrower or any Guarantor Subsidiary or any Subsidiary of Holdings (other than the Borrower) that will become a Guarantor Subsidiary upon consummation of such Disposition and (ii) any Non-Guarantor Subsidiary may be merged or consolidated with or into any other Non-Guarantor Subsidiary, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Non-Guarantor Subsidiary; provided, provided that (iA) in the case of such a mergermerger or consolidation involving the Borrower, Company the Borrower shall be the continuing or surviving Person and (B) in the case of such a merger or consolidation involving a Guarantor Subsidiary, as applicable such Guarantor Subsidiary or an entity that shall become a Guarantor Subsidiary upon the consummation of such merger or consolidation, shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (other than the Company) (i) Dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at Fair Market Value in clauses the case of other non-Cash proceeds) (i), ) are less than $5,000,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) and when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $10,000,000; provided (iiiA) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, the consideration received for such assets shall be in an amount at least equal to the fair market value Fair Market Value thereof (determined in good faith by the board of directors of Company Holdings or the Borrower (or similar governing body)), (2B) no less than 8075% thereof of such consideration shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3C) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.10(a);
(ed) disposals Dispositions of obsolete, damaged, worn out or surplus property;
(e) Permitted Acquisitions;
(f) disposals Investments made in accordance with Section 6.6;
(g) Dispositions of leased or financed automobiles Inventory, Cash and Cash Equivalents in the ordinary course of business;
(gh) Permitted Acquisitionsany such transaction that is a Restricted Payment permitted pursuant to Section 6.4;
(hi) Reinvestments dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business and exclusive of factoring or similar arrangements;
(j) licenses, sublicenses, leases or subleases permitted pursuant to Section 6.2(k); provided that any upfront payments, “down payments” or similar payments paid in connection with the consummation of such Disposition in excess of $2,000,000 with respect to any transaction or series of related transactions or in excess of $5,000,000 in the aggregate in any Fiscal Year (whether made on the date of such consummation or otherwise) shall be applied to the Loans pursuant to Section 2.10(a);
(k) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including any agreement in lieu thereof or any similar proceeding);
(i) the abandonment, cancellation or lapse of registered patents, trademarks, copyrights and other intellectual property of any Credit Party or any of its Subsidiaries that are, in the reasonable business judgment of such Credit Party or Subsidiary, no longer material to, or no longer used or useful in, the business of such Credit Party or Subsidiary, (ii) the abandonment, cancellation or lapse of patents, trademarks, copyrights, or other intellectual property rights in the ordinary course of business, so long as (in each case under Section 2.14(aclauses (i) and (ii)), (A) with respect to copyrights, such copyrights are not material revenue generating copyrights and (B) such lapse, cancellation or abandonment is not materially adverse to the interests of the Lenders, or (biii) the expiration of patents in accordance with their statutory terms;
(m) the dissolution or liquidation of any Immaterial Subsidiary;
(n) any sale of any Investment in any Joint Venture pursuant to customary buy/sell terms between the Joint Venture parties pursuant to documentation evidencing such Joint Venture;
(o) any expiration of any option agreement in respect of real or personal property;
(p) the assignment by PLBY Group Inc. of its rights and obligations under the Aircraft Purchase Agreement and related documentation to the Aircraft SPV;
(i) the contemporaneous exchange, in the ordinary course of business, of property for property of a like kind, to the extent that the property received in such exchange is of value equivalent to or greater than the value of the property exchanged and (ii) the sale of equipment or other fixed assets to the extent that (A) such assets are exchanged for credit against the purchase price of similar replacement assets that are purchased within 90 days or (B) the proceeds of such sale are applied to the purchase price of replacement assets within 90 days;
(r) Dispositions of assets by and among Holdings and its Subsidiaries; provided, that if the transferor in such a transaction is a Credit Party, then (A) the transferee must be a Credit Party or (B) such Disposition must be in the ordinary course of business and (1) the portion of such Disposition made for less than fair market value and (2) any non-cash consideration received in exchange for such Disposition shall, in the case of each of clauses (1) and (2), constitute an Investment in such Subsidiary and must be otherwise permitted pursuant to Section 6.6;
(s) any surrender, expiration or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind, in each case in the ordinary course of business; and
(t) Disposition of assets acquired in a Permitted Acquisition or other Investment permitted pursuant to Section 6.6 that the Borrower determines will not be used or useful in the business of the Borrower and its Subsidiaries; provided that, for the avoidance of doubt, this Section 6.8 shall not prohibit Dispositions of assets which are subject to Liens permitted under Section 6.2 and that secure (i) Investments made Indebtedness permitted under Section 6.1(i) or (ii) Indebtedness otherwise permitted under Section 6.1 and incurred to finance the acquisition, construction, lease or improvement of assets after the Closing Date in accordance connection with Section 6.7Consolidated Capital Expenditures permitted under this Agreement, so long as such Indebtedness is created within 180 days after the acquisition, construction, lease or improvement of the asset financed, in the case of each of clauses (i) and (ii), if the title to such asset so financed is transferred to the Person providing such Indebtedness.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (PLBY Group, Inc.), Credit and Guaranty Agreement (PLBY Group, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course Ordinary Course of businessBusiness) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Any Domestic Subsidiary of Company Euramax may be merged with or into Company Euramax or any Guarantor Subsidiaryother Borrower, as the case may be, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Euramax or any Guarantor Subsidiaryother Borrower; provided, (i) in the case of such a merger, Company Euramax or such Guarantor Subsidiaryother Borrower, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionReserved;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset SalesSales (exclusive of those otherwise permitted under Section 6.11), provided, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) (1) except are less than $25,000,000 with respect to any single Asset Sale or series of related Asset Sales and (2) when aggregated with the licensing proceeds of property in all other Asset Sales made within the ordinary course of businesssame Fiscal Year, are less than $25,000,000; provided (A) 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 Company Euramax (or similar governing body)), (2B) no less than 8085% thereof shall be paid in Cash on the date of Cash, (C) if such sale or within six months thereafterAsset Sale involves any Collateral, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof of Collateral shall be applied as required by Section 2.14(a)2.20(b)(iii) and (D) if such Asset Sale involves any Collateral, Borrowers shall deliver to Agent prior to such Asset Sale a Borrowing Base Certificate that reflects the adjustment to the Borrowing Base after giving effect to such Asset Sale and certifies that no Out-of-Formula Condition will exist on the date of and after giving pro forma effect to such Asset Sale;
(e) disposals Asset Sales of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7;
(g) Euramax may liquidate any of its inactive Subsidiaries that has total net assets (as shown on the most recent balance sheet of such inactive Subsidiary delivered to Agent and at the time if liquidation) of $100,000 or less, provided any Restricted Junior Payments in connection with such liquidation are made in accordance with Section 6.5;
(h) (i) the Permitted Restructuring and (ii) Permitted Acquisitions;
(i) Sales of Capital Stock in any Subsidiary to qualify directors or allow for investments by foreign nationals, in either case, to the extent required by applicable law.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.), Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and materials, equipment and Capital Expenditures other assets in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolveddissolved into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such a Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Foreign Subsidiary (may be merged with or into any other than the Company) (i) that is no longer useful Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in the business one transaction or a series of the Company or (ii) of which liquidation or dissolution is in the best interest of the Companytransactions, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionother Foreign Subsidiary;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset Sales, provided, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) are less than $100,000,000 in the aggregate; provided (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 8075% thereof shall be paid in Cash on (except in the date case of such sale or within six months thereafterasset swaps), excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(ig) Investments made in accordance with Section 6.7.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Kraton Polymers LLC)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party Neither Company nor any Guarantor Subsidiary shall, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Consolidated Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Restricted Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person. In addition, (ii) any Restricted Subsidiary of Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall that is not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor may be merged with or into any other Restricted Subsidiary of Company that is not a Guarantor which is its direct parent or Subsidiary., or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Restricted Subsidiary of Company that is not a Guarantor and which is its direct parent or Subsidiary;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, the Net Asset Sale Proceeds of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed the greater of (x) $100,000,000 and (y) 3.0% of Total Tangible Assets; provided,
(1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body))thereof, (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterand Cash Equivalents, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)) to the extent required thereby;
(d) the sale or other dispositions of those assets identified on Schedule 6.8;
(e) disposals Asset Sales of obsoletenon-core assets (as determined by Company in good faith) acquired in any Permitted Acquisition by Company and any of its Restricted Subsidiaries; provided that (i) such Asset Sales are commenced within eighteen (18) months of such Permitted Acquisition, worn out or surplus property(ii) not less than 75% of the consideration received by Company and its Restricted Subsidiaries in connection with any such Asset Sales is in the form of Cash and Cash Equivalents; (iii) the consideration received by Company and its Restricted Subsidiaries in connection with any such Asset Sales is equal to the fair market value of such assets (as determined by Company in good faith); and (iv) the Net Asset Sale Proceeds from such Asset Sales shall be applied as required by Section 2.14(a) to the extent required thereby;
(f) disposals of leased or financed automobiles in the ordinary course of businessExcluded Asset Sales;
(gi) Permitted AcquisitionsAcquisitions by Company or by any Guarantor Subsidiary of a Person which becomes a Guarantor Subsidiary; (ii) Permitted Acquisitions by Company or by any Restricted Subsidiary of a Person which does not become a Guarantor Subsidiary to the extent the consideration paid by Company or by such Restricted Subsidiary does not exceed the greater of (x) $500,000,000 and (y) 15.0% of Total Tangible Assets in the aggregate plus the Available Amount at such time and (iii) acquisitions by Company of assets contributed to it by Holding as equity capital contributions;
(h) Reinvestments acquisitions of real property that is contiguous to real property owned by Company or its Restricted Subsidiaries at such time; so long as such acquisition is either (i) by Company or any Guarantor Subsidiary, or (ii) if not within clause (i) of this provision, is either (A) financed with the proceeds of Limited Recourse Debt and/or the proceeds of an Investment pursuant to Section 6.6(j) or (B) consummated for consideration in an aggregate amount (together with any other acquisitions made in reliance on this Section 6.8(h)(ii)(B) following the Amendment and Restatement Effective Date) not to exceed $90,000,000;
(i) [reserved];
(j) either Company or any Subsidiary may merge with any other Person in order to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 5.15;
(i) any Restricted Subsidiary that is not a Credit Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Credit Party and (ii) any Restricted Subsidiary (other than Company) may liquidate or dissolve, or any of Company or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if Company determines in good faith that such action is in the best interest of Company and its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any dissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Guarantor unless such disposition of assets is permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(l) the unwinding of any Hedge Agreement;
(m) dispositions of Investments in joint ventures that are permitted under Section 2.14(a6.6 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;
(n) dispositions resulting from any casualty or (b)other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset; and
(io) Investments made in accordance with permitted under Section 6.76.6 and Restricted Junior Payments permitted under Section 6.4.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Covanta Holding Corp)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company (i) may be merged with or into Company any Borrower or any Guarantor or any other wholly owned Subsidiary, or (ii) may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company any Borrower or any Guarantor SubsidiaryGuarantor, (iii) may be converted from one form of business organization to another form of business organization or (iv) that is a Foreign Subsidiary may engage with another Foreign Subsidiary in any transaction described in clause (i) or (ii) above; provided, (i) in the case of such a mergermerger (other than in the case of a merger between Immaterial Subsidiaries and/or Foreign Subsidiaries), Company the Borrower or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person; provided further, (ii) Company gives that in the Agents ten days’ prior written notice case of any such action, transaction pursuant to clause (iii) no Default above where the surviving corporation is a Credit Party organized in a state other than Delaware, such surviving Person shall deliver a certificate of an Authorized Officer and, if requested by the Administrative Agent, a legal opinion affirming the validity of its Guarantee and its Lien or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) its Collateral supporting the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.Obligations;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, the proceeds of which (1) except with respect to valued at the licensing of property principal amount thereof in the ordinary course case of businessnon-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $20,000,000; provided (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 management of directors of Company (or similar governing body)the Borrower), (2y) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3z) in the case of an Asset Sale of Current Asset Collateral, the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
, restrictive or custom items, defective goods or goods returned or rejected by customers (f) disposals of leased except as may be repackaged or financed automobiles otherwise prepared for sale), in each case, in the ordinary course of business;
(ge) Permitted Acquisitions, the Acquisition Consideration for which constitutes less than $100,000,000 in the aggregate in any Fiscal Year; provided, not more than $25,000,000 in the aggregate in any Fiscal Year shall be permitted to be used to acquire Persons that, once acquired, would constitute non-Credit Parties; and provided further, the Credit Parties shall have complied with the requirements of Sections 5.11, 5.12 and 5.13 within 30 days after the consummation of such Permitted Acquisition;
(hf) Reinvestments permitted under Section 2.14(a) or (b); and
(i) other Investments made in accordance with Section 6.76.6; and
(g) Permitted Asset Swaps.
Appears in 1 contract
Samples: Revolving Credit Agreement (Source Interlink Companies Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Consolidated Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Credit Party or any Subsidiary of Company any Credit Party may be merged with or into Company any other Credit Party or any Guarantor SubsidiaryPerson that becomes a Credit Party in connection therewith, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company any Credit Party or any Guarantor SubsidiaryPerson that becomes a Credit Party in connection therewith; provided, (i) in the case of such a merger, any Credit Party or any Person that becomes a Credit Party in connection therewith shall be the continuing or surviving Person or, in the case of the Company, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person;
(b) sales or other dispositions of assets that do not constitute Asset Sales;
(c) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) (i) are less than $1,000,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) Company gives when aggregated with the Agents ten days’ prior written notice proceeds of such actionall other Asset Sales made within the same Fiscal Year, are less than $2,000,000; provided, notwithstanding clauses (iiii) and (ii) above, so long as no Default or Event of Default shall have occurred exists or be continuing either before or after giving effect theretowould occur as a result of such Asset Sale, Company may request and Administrative Agent may consent (in its sole discretion), no more than four times during the term of this Agreement, to Asset Sales which are in excess of the amounts in clauses (i) and (ivii) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner therebyabove but less than $5,000,000; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company such Credit Party (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(e) subject to pro forma compliance with a Leverage Ratio which is .25x more restrictive than the then-applicable Leverage Ratio under Section 6.8(c) at such date of determination, Permitted Acquisitions the consideration for which constitutes the sum of (i) an amount in Cash (including (i) borrowings of Revolving Loans and New Term Loans and (ii) up to $20,000,000 of Consolidated Excess Cash Flow) not to exceed $30,000,000 in the aggregate in any Fiscal Year; provided, that the Company shall retain a balance of $5,000,000 of any combination of unencumbered Cash (other than security interests pursuant to any Credit Document and Permitted Liens) and availability under the Revolving Commitments, plus (ii) an aggregate amount not to exceed $30,000,000 per Fiscal Year of the Capital Stock or the net cash proceeds from the issuance of equity of Company or any of its Subsidiaries; provided, such amount with respect to this clause (ii) for any Fiscal Year shall be increased by an amount equal to the excess of such amount for the previous Fiscal Year (including any Fiscal Year prior to the Second Restatement Effective Date but without giving any effect to any carryover into such previous Fiscal Year pursuant to this clause (ii)) over the actual amount of Permitted Acquisitions using the Capital Stock or the net cash proceeds from the issuance of equity of Company or any of its Subsidiaries for such previous Fiscal Year, plus (iii) an amount equal to the excess Maximum Consolidated Capital Expenditures for the previous Fiscal Year (including any Fiscal Year prior to the Second Restatement Effective Date, including any carryover amount permitted pursuant to Section 6.8(d), over the Consolidated Capital Expenditures for such Fiscal Year;
(f) disposals of leased leases or financed automobiles sub-leases in the ordinary course of businessbusiness of any Credit Party or any Subsidiary of any Credit Party;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7; and
(h) Sale and lease-back transactions permitted pursuant to Section 6.11. Transactions permitted pursuant to one of the above subsections shall not be included in determining the limitation contained in any other subsection of this Section 6.9.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable applicable, shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) dispositions of assets (i) that is no longer useful in the business of the Company do not constitute Asset Sales or (ii) of which liquidation made to Company or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionGuarantor Subsidiary;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”Binghamton Acquisition;
(d) Asset Salesdisposals of obsolete or worn out property, provided, the proceeds of which are less than $100,000 and when aggregated with all other dispositions made pursuant to this clause (1d) except with respect from the Closing Date to the licensing date of property in the ordinary course of business, determination are less than $250,000; provided 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals of obsolete, worn out or surplus propertythe WB Dispositions;
(f) disposals of leased or financed automobiles in the ordinary course of business;
subject to Section 2.13(a), up to two (g2) Permitted Special Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(ig) Investments made in accordance with Section 6.76.6; and
(h) if Silver Point and/or its Affiliates and/or Related Funds do not have or hold Tranche A Term Loan Exposure and Tranche B Term Loan Exposure in the aggregate representing at least fifty percent (50%) of the sum of (i) the aggregate Tranche A Term Loan Exposure of all Lenders and (ii) the aggregate Tranche B Term Loan Exposure of all Lenders, the limitation set forth in this Section 6.8 with respect to acquisitions will not apply to acquisitions of assets and properties that will be used in the business of the Company and its Subsidiaries as existing on the Closing Date or in businesses reasonably related thereto or a Permitted Business Acquisition; provided that in the case of any acquisition (including any Permitted Business Acquisition) permitted by this clause (h), (A) the total acquisition consideration (including related fees and expenses and assumed funded debt but excluding any other assumed liabilities) of the acquired business is not in excess of nine times the increase in Broadcast Cash Flow of the Company resulting from such acquisition, such increase in Broadcast Cash Flow to be determined by the Company in good faith on a pro forma basis for the most recent twelve month period for which unaudited financial statements are available after giving effect to incremental revenue or expense and cost reductions determined in good faith by the Company to be reasonably achievable during the four Fiscal Quarter period succeeding such acquisition, such calculation to be reasonably acceptable to Administrative Agent, (B) the primary purpose of such acquisition is to acquire, and there is acquired, a television station with a Big 4 (ABC, CBS, NBC or Fox) network affiliation agreement in place or the creation (through ownership by the Company and its Subsidiaries) of a duopoly in a market and (C) that the Company shall use all reasonable best efforts to promptly dispose of any other asserts acquired in such acquisition or Permitted Business Acquisition.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Granite Broadcasting Corp)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and materials, equipment and Capital Expenditures or other assets in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) subject to the provisions of Section 6.17, any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor SubsidiaryCompany, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person;
(b) sales or other dispositions of assets that do not constitute Asset Sales;
(c) provided no Default or Event of Default shall have occurred and be continuing, Permitted Business Acquisitions, the aggregate consideration for which is equal to or less than the Permitted Business Acquisition Amount;
(iid) Investments made in accordance with Section 6.6;
(e) sales, leases or other dispositions of equipment or other property (including inventory) of Holding or its Subsidiaries determined by the senior management of Holding to be no longer useful or necessary in the operation of the business of Company gives the Agents ten days’ prior written notice or its Subsidiaries;
(f) sales, leases or other dispositions of such action, property having a net book value not in excess of $25,000,000 in any Fiscal Year; provided that (iiii) no Default or Event of Default shall have occurred or and be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, the consideration received for such assets property shall be not less than 75% in Cash and in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Holding); provided further, that no sale may be made pursuant to this clause (f) of the Capital Stock of any Subsidiary except in connection with the sale of all its outstanding Capital Stock that is held by Company (and any other Subsidiary; further provided, that to the extent that the net book value of such property sold, leased or similar governing body)), (2) no disposed in any Fiscal Year is less than 80% thereof shall be paid in Cash on $25,000,000, the date amount of such sale difference, but in no case more than $5,000,000, may be carried forward and used for sales, leases, or within six months thereafterdispositions of property in the immediately succeeding Fiscal Year (after the full amount such sales, excluding any sales leases and other dispositions of Axid® OS property otherwise permitted to be made under this paragraph (f) in such Fiscal Year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding Fiscal Year shall lapse and (3) terminate at the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(aend of such Fiscal Year);
(eg) disposals the sale of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles defaulted receivables in the ordinary course of business;
(g) Permitted Acquisitionsbusiness and not as part of an accounts receivables financing transaction;
(h) Reinvestments the Acquisition, the Merger and the mergers required pursuant to Section 5.17(a);
(i) the transactions permitted under by Section 2.14(a6.10.
(j) inactive Subsidiaries may be liquidated or (b)dissolved; and
(ik) Investments made in accordance with Section 6.7sales or dispositions on arms length commercial terms of "Classworks" and/or its product lines.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shallThe Company shall not, nor shall it permit any of its Material Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part substantially all of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Material Subsidiary of the Company may (i) be merged with or into the Company, any other Wholly Owned Subsidiary of the Company or any Guarantor Subsidiaryentity which immediately upon the effectiveness of such merger becomes a Material Subsidiary of the Company, or may be liquidated(ii) whether in a liquidation, wound up wind-up, dissolution or dissolvedotherwise, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions all or any part of its business, property or assets may be conveyedto the Company, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company any Wholly Owned Subsidiary or any Guarantor Subsidiaryentity which immediately upon the effectiveness of any such transaction become a Material Subsidiary of the Company; provided, (i) in the case of such a mergermerger with the Company, the Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) or if the Company gives is not the Agents ten days’ prior written notice continuing or surviving entity, the surviving entity or the successor to the Company has unconditionally assumed in writing all of such action, (iii) no Default or Event the payment and performance obligations of Default shall have occurred or be continuing either before or after giving effect thereto, the Company under this Agreement and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.other Credit Documents;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company do not constitute Asset Sales or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionPortfolio Asset Sales;
(c) sales Asset Sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Portfolio Asset Sales, provided, provided that (1) except with respect to the licensing of property in the ordinary course of business, the consideration received for such assets shall consist solely of Cash and shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Company (or similar governing body)), ) and (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section Schedule 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(fe) disposals acquisitions of leased or financed automobiles assets described in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b)Schedule 6.7; and
(if) Investments made in accordance with Section 6.76.5.
Appears in 1 contract
Samples: Credit Agreement (Emc Corp)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, transactions all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, substantially all property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of the Company may be merged with or into the Company or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets or the Equity Interests issued by it may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions, to the Company or any Guarantor; provided, in the case of such a merger, the Company or such Guarantor, as applicable shall be the continuing or surviving Person; (ii) any Massachusetts securities corporation may be merged with or into any other Massachusetts securities corporation, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets or the Equity Interests issued by it may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions, to any other Massachusetts securities corporation or any U.S. Loan Party; and (iii) any Subsidiary that is not a Loan Party may be merged with or into any other Subsidiary, or be liquidated, wound up or dissolved, or its issued Equity Interests or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed Disposed of, in one transaction or a series of transactions, transactions to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor other Subsidiary.
(b) any Subsidiary (sales, licenses, leases or other than the Company) (i) Dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses Asset Sales; provided (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Board of directors Directors of the Company (or similar governing body)), (2ii) no less than 8070% thereof shall be paid in Cash; provided that for the purpose of this clause (ii), the following shall be deemed to be Cash: (A) any securities received by the Company or such Subsidiary that are converted by the Company or such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received in such conversion) within 180 days following the closing of the applicable Asset Sale, (B) any Designated Non-Cash Consideration in respect of such Asset Sale having an aggregate fair market value, taken together with the Designated Non-Cash Consideration in respect of all such Asset Sales, not to exceed at any time the greater of $200,000,000 and 3% of Total Assets and (C) any liabilities (as shown on the date Company’s then-most recent balance sheet provided hereunder or in the footnotes thereto) of such sale or within six months thereafterthe Company and/or any of its Subsidiaries (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which the Company and the applicable Subsidiaries shall have been validly released by all applicable creditors in writing, excluding any sales of Axid® OS and (3iii) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.05(c)(i) and (iv) at the time of such Asset Sale, no Default or Event of Default shall have occurred and be continuing or would result therefrom (it being understood and agreed that the proceeds of such Asset Sales shall be valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds);
(ed) disposals Disposals of obsolete, worn out or surplus propertyproperty or damaged property no longer useful in the business of the Company and its Subsidiaries (including without limitation, in connection with scheduled maintenance);
(f) disposals of leased or financed automobiles in the ordinary course of business;
(ge) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made or owned in accordance with Section 7.06 and Sale and Leaseback Transactions made in accordance with Section 6.77.09;
(g) (i) the abandonment of rights, franchises, licenses, trade names, copyrights, patents, trademarks or other Intellectual Property that are, in the reasonable judgment of the Company, either no longer economically practicable to maintain or no longer material in the conduct of the business of the Company and its Subsidiaries taken as a whole, (ii) the transfer of Intellectual Property rights (including Permitted Licenses) in settlement of any dispute or litigation with governmental regulatory authorities or otherwise necessary to comply with any legal or regulatory requirement, (iii) the transfer of Intellectual Property rights (including Permitted Licenses) to third parties in settlement of any dispute or litigation with third parties and (iv) the transfer, sale or other disposition of non-core Intellectual Property, which, in the case of clauses (i), (iii) and (iv), does not materially interfere with the conduct of the Company’s or any of its Subsidiaries’ business as conducted on the Closing Date (or as permitted by Section 7.11) or materially detract from the value thereof;
(h) sales to a Receivables Entity or transfers by a Receivable Entity of accounts receivable and related assets of the type specified in the definition of “Qualified Receivables Transaction”;
(i) (x) to the extent allowable under Section 1031 of the Code, any exchange of like-kind property (excluding any boot thereon) for use in any business or lines of business in which the Company and/or its Subsidiaries are engaged as of the Closing Date (or as permitted by Section 7.11) and (y) or any other exchange for replacement property or for credit to purchase similar replacement property provided that, in each case, to the extent the property exchanged is Collateral, such replacement property shall constitute Collateral;
(j) sales, licenses, leases or other Dispositions of property to the Company or a Subsidiary; provided that if the transferor of such property is a U.S. Loan Party either (i) the transferee thereof must be a U.S. Loan Party, (ii) such sale, license, lease or other Disposition must be for fair market value or (iii) such transaction shall constitute an Investment and must be permitted by Section 7.06;
(k) the unwinding of any Hedge Agreement or Swap Obligations;
(l) sales, transfers and other 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, which do not materially interfere with the conduct of the business of the Company and its Subsidiaries;
(m) the creation of a Lien permitted under Section 7.02 (other than 7.02(w));
(n) dispositions of Investments or accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(o) the sale, discount or other Disposition of accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(p) the taking of any Real Estate Asset by any Person pursuant to the power of eminent domain, condemnation or otherwise; provided that any Net Insurance/ Condemnation Proceeds realized by the Company or any of its Subsidiaries in connection with such taking are applied in accordance with Section 2.05(c)(ii), if applicable;
(q) Dispositions of assets not used or useful in the business of the Company and its Subsidiaries acquired in connection with (i) any Permitted Acquisition or any other acquisition or Investment permitted under this Agreement within 180 days thereof and (ii) any Prior Acquisition (it being understood and agreed that (x) Cash and Cash Equivalents shall not constitute non-core assets and (y) Acquired Non-Investment Grade Securities shall constitute non-core assets); provided that, in regards to any Permitted Acquisition, Prior Acquisition or other acquisition constituting a Investment, the aggregate amount of assets disposed of pursuant to this clause (q) shall not exceed the greater of (x) 20% of the net purchase price of such Permitted Acquisition, Prior Acquisition or other acquisition constituting an Investment, as applicable and (y) 1% of Total Assets;
(r) (i) any leases or subleases of any Real Estate Asset permitted by Section 7.02 and (ii) Dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(s) the abandonment, termination or lapse of rights, franchises, licenses and permits to the extent permitted by Section 6.02;
(t) Dispositions of mutual funds and other Investments permitted to be made pursuant to Section 7.06(w);
(u) Restricted Junior Payments permitted by Section 7.04 to the extent constituting a Disposition or Asset Sale; and
(v) the Permitted Gen-Probe Asset Sale. For the avoidance of doubt, the formation of a Subsidiary, in and of itself, shall be permitted under this Section 7.08 hereof provided that any capitalization or other initial or subsequent Investment in connection therewith shall be subject to Section 7.06 hereof.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantially all part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Restricted Subsidiary of Company Borrower may be merged with or into Company Borrower or any Guarantor Restricted Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor Restricted Subsidiary; provided, (i) in the case of such a merger, Company Borrower or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered that a Guarantor Subsidiarymay only be merged, liquidated or consolidated into Borrower or another Person that is a Guarantor when such merger, liquidation or consolidation occurs.
(b) any Subsidiary sales or other dispositions of assets that do not constitute Asset Sales;
(other than the Companyc) (i) that is no longer useful licensing arrangements in respect of Intellectual Property permitted under Section 6.2(k), and (ii) the sale, disposal, abandonment, cancellation or lapse of Intellectual Property rights, or any issuances or registrations, or applications for issuances or registrations, of any Intellectual Property rights, that, in the reasonable good faith determination of Borrower, are not material to the conduct of the business of Borrower or any of its Subsidiaries;
(d) disposals of damaged, obsolete, worn out or surplus property;
(e) Permitted Acquisitions; provided, with respect to acquisition targets that do not become Guarantors or are not domiciled within the Company United States, the consideration for such Persons or assets shall not exceed, collectively with any Investment permitted under Section 6.6(b) in Restricted Subsidiaries other than Guarantors, more than $11,000,000;
(f) Investments made in accordance with Section 6.6;
(g) Borrower or any Restricted Subsidiary may merge with any other Person in order to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 5.16;
(h) (A) the exchange of equipment (including slot machines, Interactive Gaming Systems, Associated Equipment and other gaming devices) for other similar equipment, which is used or useful in a Permitted Business, and (B) any exchange of undeveloped land (including a combination of assets and Cash Equivalents) for assets used or useful in a Permitted Business of comparable or greater market value or useful to the business of Borrower and its Restricted Subsidiaries as a whole, in each case so long as, if the assets are exchanged by a Credit Party, the assets to be received in such exchange are received by a Credit Party;
(i) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(j) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(k) an issuance of Equity Interests, indebtedness or other securities by (A) a Restricted Subsidiary to Borrower or to a Restricted Subsidiary or (iiB) by Borrower, in each case, to the extent not prohibited hereunder;
(l) the granting of which liquidation Liens or dissolution is any lease or grant of interest, in each case, in accordance with Section 6.2;
(m) the best interest sale or other disposition of cash or Cash Equivalents;
(n) with respect to any property or asset (tangible or intangible, real or personal), any of the Companyfollowing: (a) any loss, each destruction or damage of such property or asset; (b) any actual condemnation, seizure or taking by exercise of the power of eminent domain or otherwise of such property or asset, or confiscation of such property or asset or the requisition of the use of such property or asset; or (c) any settlement in lieu of clause (b) above;
(o) any exchange by Borrower or a Restricted Subsidiary of assets with a fair market value less than $5,500,000 (including a combination of assets and Cash Equivalents) for assets used or useful in a Permitted Business of comparable or greater market value or usefulness to the business of Borrower and its Restricted Subsidiaries as a whole, as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionBorrower;
(cp) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, ; provided,
(1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)Borrower), (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterand Cash Equivalents, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds Proceeds, if any, thereof shall be applied as required by Section 2.14(a) and (4) the aggregate amount of all assets so disposed of shall not account for more than 38.5% of the net revenue of Borrower and its Restricted Subsidiaries as of the date of such disposition (as reflected on the most recent financial statements delivered pursuant to Section 5.1); provided that any Asset Sale or series of related Asset Sales of assets with a fair market value of not more than $27,500,000 shall not be subject to the limitations of this clause (4);
(eq) disposals of obsolete, worn out the cancellation or surplus property;
(f) disposals of leased or financed automobiles forgiveness in the ordinary course of businessbusiness of any loan or advance to any employee of Borrower or its Restricted Subsidiaries;
(gr) Permitted Acquisitionsthe unwinding of Hedge Obligations;
(hs) Reinvestments permitted under Section 2.14(a) any Immaterial Subsidiary may liquidate, wind up or (b)dissolve or change its legal form if Borrower determines in good faith that such liquidation or dissolution is in the best interests of Borrower and is not materially disadvantageous to the Lenders; and
(it) Investments made Sale and Leaseback Transactions to the extent such transactions are permitted under Section 6.10 and the Attributable Indebtedness in accordance with respect thereof is permitted under Section 6.76.1(y).
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (American Casino & Entertainment Properties LLC)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor The Company shall it not and shall not permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of the Company may be merged with or into the Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, the Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) assets that do not constitute Asset Sales, provided, including any sales or disposition of assets (1including inventory) except with respect to the licensing of property in the ordinary course of business;
(c) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made since the Closing Date, are less than $75,000,000; provided (1) 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on Cash; provided, that this clause (2) shall not apply to Asset Sales the date aggregate consideration of such sale or within six months thereafterwhich is less than $10,000,000 in any Fiscal Year, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(f) disposals of leased property whether or financed automobiles not owned or hereafter acquired in the ordinary course of business;
(ge) Permitted Acquisitions, the consideration for which constitutes (i) less than $25,000,000 in the aggregate in any Fiscal Year, and (ii) less than $100,000,000 in the aggregate from the Closing Date to the date of determination; provided that in the case of Permitted Acquisitions of non-US Persons, the consideration shall not exceed more than $20,000,000 in the aggregate in any Fiscal Year;
(f) Investments made in accordance with Section 6.6;
(g) abandonment or other disposition of patents, trademarks or other intellectual property that are, 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) Reinvestments permitted under Section 2.14(a) intercompany sale or transfer of patents, trademarks or other intellectual property related to the textile products segment of the Company, the fair market value of which is less than $30,000,000, to Day German Holdings GmbH or one of its Subsidiaries for consideration consisting of cash and/or intercompany Indebtedness; provided that consideration received for such assets shall be in an amount at least equal to the fair market value thereof (bdetermined in good faith by the board of directors of the Company); and
(i) Investments made any sale or discount of accounts receivable arising in accordance the ordinary course of business, but only in connection with Section 6.7the compromise or collection thereof or to resolve disputes that occur in the ordinary course of business.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Day International Group Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Borrower may be merged with or into Company Borrower or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales (i) the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses (i)the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made from the Closing Date to the date of determination, are less than $50,000,000 in the aggregate and (ii) and (iii) by Foreign Subsidiaries of Borrower organized under any of the definition laws of “Asset Sale”;
(d) Asset SalesCanada and/or Province or Territory thereof, or by Borrower of the Equity Interests in such Foreign Subsidiaries; provided, in each case (1) except with respect to the licensing of property in the ordinary course of business, 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 Company Borrower (or similar governing body)), (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.11(a);
(ed) disposals of obsolete, worn out or surplus property;
(e) Permitted Acquisitions, for which the aggregate amount of Cash consideration for all such Permitted Acquisitions from the Closing Date to the date of determination does not exceed the sum of (i) $50,000,000 plus (ii) the aggregate amount of the proceeds of Equity Interests issued to finance such Permitted Acquisition within 180 days of such issuance and received by the Borrower since the Closing Date (and not otherwise required to be used to prepay Loans pursuant to Section 2.11(c) hereof or used to prepay, redeem, retire or purchase Senior Notes as provided herein);
(f) disposals of leased or financed automobiles in the ordinary course of businesssale-leaseback transactions permitted by Section 6.9;
(g) Permitted Acquisitionssales and other dispositions of Non-Core Assets, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other such sales or dispositions of Non-Core Assets made from the Closing Date to the date of determination, are less than $40,000,000 in the aggregate (when aggregated with sale-leaseback transactions pursuant to Section 6.9(i) and (ii)); provided (1) 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 (or similar governing body)), (2) no less than 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a);
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.76.6;
(i) any Foreign Subsidiary of Borrower may be merged with or into a wholly-owned Foreign Subsidiary of Borrower, or be liquidated, wound up or dissolve, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a wholly owned Foreign Subsidiary of Borrower; and
(j) the merger of a special purpose subsidiary, a majority of the voting Equity Interests of which is owned by one or more Permitted Holders, into Borrower; provided, however, that (i) the Borrower is the surviving corporation, (ii) no Default in Event of Default exists immediately before or immediately after the consummation of such merger, (iii) such special purpose subsidiary shall be an entity formed solely for the purpose of acquiring the Equity Interests of Borrower and merging with and into the Borrower, and shall have no liabilities, indebtedness or other obligations, (iv) the Administrative Agent shall be satisfied that, immediately after the consummation of such merger, there shall be no adverse change in the financial position, stockholders’ equity or results of operations of the Borrower as surviving entity and its subsidiaries, or in the tax, accounting, legal, environmental, regulatory and other issues relevant to the Borrower as surviving entity and its subsidiaries than immediately prior to such merger and (v) the Credit Parties shall take all such actions and execute and deliver, or cause to be executed and delivered, all such mortgages, documents, instruments, agreements, opinions and certificates (including, without limitation, similar to those described in Sections 3.1(g), 3.1(h) and 3.1(i)) requested by the Administrative Agent.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Movie Gallery Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into Company Borrower or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor SubsidiaryGuarantor; provided, (i) that, in the case of such a merger, Company Borrower or such Guarantor SubsidiaryGuarantor, as applicable applicable, shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) dispositions of assets (i) that is no longer useful in the business of the Company do not constitute Asset Sales or (ii) of which liquidation made to Borrower or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionGuarantor;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, the proceeds of which when aggregated with the proceeds of all other Asset Sales or series of related Asset Sales made within the same Fiscal Year, are less than $10,000,000 in aggregate; provided, that, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)) of such Person), (2) no less than 80% one hundred percent (100%) thereof shall be paid in Cash on unless otherwise approved by the date of such sale or within six months thereafterRequisite Lenders, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.13(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(id) Investments made in accordance with Section 6.76.6;
(e) sales of Accounts in the ordinary course of business pursuant to Borrower’s Customer Agreements; provided, that in each case, the parties to a Customer Agreement shall have entered into a consent agreement with Borrower and Collateral Agent, in form and substance reasonably satisfactory to Collateral Agent, which provides, among other things, that all payments due and owing to Borrower under such customer agreement shall be directly deposited in a blocked account under the control of the Collateral Agent;
(f) issuance of Capital Stock pursuant to employee benefit plans.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Proliance International, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger merger, amalgamation or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of Company may be merged or amalgamated with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, Person and (ii) any Subsidiary of Company gives the Agents ten days’ prior written notice that is not a Credit Party may be merged with or into any other Subsidiary of such actionCompany that is not a Credit Party, (iii) no Default or Event of Default shall have occurred or be continuing either before liquidated, wound up or after giving effect theretodissolved, and (iv) the Collateral Agent’s Liens or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in the Collateral shall one transaction or a series of transactions, to any other Subsidiary of Company that is not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.Credit Party;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”Dura Auto Systems Rxxxxx GmbH;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals Sales of obsolete, worn worn-out or surplus property;
(f) disposals property or property no longer useful or necessary in the operation of leased or financed automobiles the business and disposed of in the ordinary course of business;
(ge) Permitted Acquisitionsleases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of Company and its Subsidiaries;
(hf) Reinvestments Asset Sales pursuant to an order approved by the Bankruptcy Court and Administrative Agent;
(g) factoring arrangements to the extent permitted under by Section 2.14(a) or (b6.1(l); and
(ih) Investments Asset Sales to the extent made pursuant to Sections 5, 6 and 7 of the Modification Agreement and Section 3(b)(vi) of the Access Agreement, in accordance with Section 6.7each case subject to the terms and conditions of the JCI Agreements.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Term Loan and Guaranty Agreement (Dura Automotive Systems Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course Ordinary Course of businessBusiness) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Any Domestic Subsidiary of Company Euramax may be merged with or into Company Euramax or any Guarantor Subsidiaryother Borrower, as the case may be, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Euramax or any Guarantor Subsidiaryother Borrower; provided, (i) in the case of such a merger, Company Euramax or such Guarantor Subsidiaryother Borrower, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionReserved;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset SalesSales (exclusive of those otherwise permitted under Section 6.11), provided, the proceeds of which (valued at the principal amount thereof in the case of non‑Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non‑Cash proceeds) (1) except are less than $25,000,000 with respect to any single Asset Sale or series of related Asset Sales and (2) when aggregated with the licensing proceeds of property in all other Asset Sales made within the ordinary course of businesssame Fiscal Year, are less than $25,000,000; provided (A) 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 Company Euramax (or similar governing body)), (2B) no less than 8085% thereof shall be paid in Cash on the date of Cash, (C) if such sale or within six months thereafterAsset Sale involves any Collateral, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof of Collateral shall be applied as required by Section 2.14(a)2.20(b)(iii) and (D) if such Asset Sale involves any Collateral, Borrowers shall deliver to Agent prior to such Asset Sale a Borrowing Base Certificate that reflects the adjustment to the Borrowing Base after giving effect to such Asset Sale and certifies that no Out-of-Formula Condition will exist on the date of and after giving pro forma effect to such Asset Sale;
(e) disposals Asset Sales of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7;
(g) Euramax may liquidate any of its inactive Subsidiaries that has total net assets (as shown on the most recent balance sheet of such inactive Subsidiary delivered to Agent and at the time if liquidation) of $100,000 or less, provided any Restricted Junior Payments in connection with such liquidation are made in accordance with Section 6.5; (h) (i) the Permitted Restructuring and (ii) Permitted Acquisitions;
(i) Sales of Capital Stock in any Subsidiary to qualify directors or allow for investments by foreign nationals, in either case, to the extent required by applicable law.
Appears in 1 contract
Samples: Senior Secured Revolving Credit and Guaranty Agreement (Euramax Holdings, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company (i) may be merged with or into Company any Borrower or any Guarantor or any other wholly owned Subsidiary, or (ii) may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company any Borrower or any Guarantor SubsidiaryGuarantor, (iii) may be converted from one form of business organization to another form of business organization or (iv) that is a Foreign Subsidiary may engage with another Foreign Subsidiary in any transaction described in clause (i) or (ii) above; provided, (i) in the case of such a mergermerger (other than in the case of a merger between Immaterial Subsidiaries and/or Foreign Subsidiaries), Company the Borrower or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person; provided further, (ii) Company gives that in the Agents ten days’ prior written notice case of any such action, transaction pursuant to clause (iii) no Default above where the surviving corporation is a Credit Party organized in a state other than Delaware, such surviving Person shall deliver a certificate of an Authorized Officer and, if requested by the Administrative Agent, a legal opinion affirming the validity of its Guarantee and its Lien or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) its Collateral supporting the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.Obligations;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, the proceeds of which (1) except with respect to valued at the licensing of property principal amount thereof in the ordinary course case of businessnon-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $20,000,000; provided (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 management of directors of Company (or similar governing body)the Borrower), (2y) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3z) in the case of an Asset Sale of Fixed Asset Collateral, the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
, restrictive or custom items, defective goods or goods returned or rejected by customers (f) disposals of leased except as may be repackaged or financed automobiles otherwise prepared for sale), in each case, in the ordinary course of business;
(ge) Permitted Acquisitions, the Acquisition Consideration for which constitutes less than $100,000,000 in the aggregate in any Fiscal Year; provided (x) not more $25,000,000 of Acquisition Consideration, in the aggregate in any Fiscal Year shall be permitted to be used to acquire Persons that, once acquired, would constitute non-Credit Parties, (y) the Credit Parties shall have complied with the requirements of Sections 5.11, 5.12 and 5.14 within 30 days after the consummation of such Permitted Acquisition and (z) that on a pro forma basis for such Permitted Acquisition, the Borrower shall be in compliance with the covenant set forth in Section 6.16;
(hf) Reinvestments permitted under Section 2.14(a) or (b); and
(i) other Investments made in accordance with Section 6.76.6; and
(g) Permitted Asset Swaps.
Appears in 1 contract
Samples: Term Loan Agreement (Source Interlink Companies Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall(i) Merge, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidationconsolidate, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or (ii) convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or (iii) acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property all or fixed substantially all assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of Company the Borrower may be merged with or into Company the Borrower or any Guarantor Subsidiary, Subsidiary or may be liquidated, wound up or dissolved, or all or any part of its business, assets or property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or any Guarantor Subsidiary; provided, (i) that in the case of such a mergertransaction involving the Borrower or a Guarantor, Company the Borrower or such Guarantor Subsidiaryshall, as applicable shall applicable, be the continuing or surviving PersonPerson or the Person to whom the applicable business, assets and/or property are conveyed, sold, leased, transferred or otherwise disposed; (ii) Company gives any Person may merge into the Agents ten days’ prior written notice of such action, Borrower in an Investment permitted by Section 6.06 in which the Borrower is the surviving Person; and (iii) no Default any Person may merge with a Subsidiary in an Investment permitted by Section 6.06 in which the surviving person is a Subsidiary so long as if any party to such merger is a Loan Party, the surviving entity is a Loan Party (or Event the surviving Person is a Domestic Subsidiary that, simultaneously with the consummation of Default shall have occurred or be continuing either before or after giving effect theretosuch merger, becomes a Loan Party and (iv) assumes the Collateral Obligations of such non-surviving Loan Party in a manner reasonably acceptable to the Administrative Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.);
(b) any Subsidiary (other than may liquidate or dissolve or change in legal form if the Company) (i) Borrower determines in good faith that is no longer useful in the business of the Company or (ii) of which such liquidation or dissolution or change in legal form is in the best interest interests of the Company, each as determined in good faith Borrower and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) Dispositions of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset Sales, ; provided, that (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)Borrower), (2) no less than 8075% thereof of the consideration for such asset sale shall be paid in Cash on or Designated Non-Cash Consideration to the date extent that all Designated Non-Cash Consideration at such time does not exceed $50,000,000 (with the fair market value of such sale or within six months thereaftereach item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), excluding any sales of Axid® OS and (3) no Event of Default is continuing or would exist after giving effect thereto and (4) the Net Asset Sale Cash Proceeds thereof shall be applied as required by Section 2.14(a);
(e) (i) disposals of damaged, obsolete, used, worn out or surplus propertyassets or property no longer useful to the business of such Person or economically impracticable to maintain and (ii) dispositions of inventory (including on an intercompany basis) and vehicles in the ordinary course of business consistent with past practice;
(f) disposals (i) the Acquisition and any merger, amalgamation, consolidation, liquidation or dissolution by the Borrower or its Subsidiaries expressly contemplated pursuant to the Merger Agreement shall be permitted and (ii) Permitted Acquisitions;
(g) sales or other Dispositions of leased property (including like-kind exchanges) to the extent that (x) such property is exchanged for credit (on a fair market value basis) against the purchase price of similar replacement property or financed automobiles (y) such property is sold or otherwise disposed of for fair market value and the proceeds of such sale or Disposition are promptly applied to the purchase price of similar replacement property;
(h) any Disposition of real property to a Governmental Authority that results in Net Cash Proceeds applied in accordance with Section 2.14(b);
(i) the abandonment, cancellation or other Disposition of Intellectual Property that is not material or is no longer used or useful in any material respect in the operation of the Borrower and its Subsidiaries;
(j) the sale or discount, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof (and not as part of any bulk sale or financing of receivables);
(k) Dispositions to effect (or which constitute) Liens permitted by Sections 6.02, Restricted Junior Payments permitted by 6.04 and Investments permitted by Section 6.06, in each case, other than by reference to this Section 6.08(k);
(l) Disposition of property subject to or resulting from casualty losses and condemnation proceedings (including in lieu thereof or any similar proceedings);
(m) any surrender or waiver of contract rights pursuant to a settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(n) Dispositions of residential real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, members of management, employees or consultants of the Loan Parties;
(o) unwinding of Swap Contracts;
(p) 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 the joint venture agreement or similar binding agreements entered into with respect to such Investment in such Joint Venture;
(q) the expiration of any option agreement with respect to real or personal property;
(r) leases, subleases, non-exclusive licenses or sublicenses of property or intellectual property in the ordinary course of business;
(gs) Permitted AcquisitionsDispositions of non-core assets (which may include real property) acquired in an acquisition permitted under this Agreement to the extent such Disposition is consummated within two (2) years of such acquisition;
(ht) Reinvestments (i) Dispositions in connection with Attributable Indebtedness permitted under Section 2.14(a6.01(aa), (ii) Dispositions of fixed or capital assets (b)including, without limitation, equipment and railcars) that have been owned by the Borrower or its Subsidiaries for less than six months at the time of such Disposition pursuant to a sale and leaseback transaction with respect to which the resulting lease is an operating lease and (iii) Dispositions of railcars and related assets pursuant to a sale and leaseback transaction to the extent such railcars and related assets were owned by the Borrower or its Subsidiaries on the Closing Date; and
(iu) Investments made in accordance with Section 6.7the purchase and sale or other transfer (including capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Covia Holdings Corp)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into Company Borrower or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any timeAsset Sales; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body))thereof, (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);) and (4) such Asset Sales shall not constitute a sale of all or substantially all of the Collateral.
(ec) disposals of obsolete, worn out or surplus propertyproperty and other sales of assets which do not constitute "Asset Sales";
(f) disposals of leased or financed automobiles in the ordinary course of business;
(gd) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
, the non-equity consideration for which constitutes (i) Investments made less than $12,500,000 in accordance with Section 6.7.the aggregate in any Fiscal Year; and (ii) less than $50,000,000 in the aggregate from the Closing Date to the date of determination; provided, that the non-equity consideration of any Permitted Acquisition may exceed the limitations set forth in clauses (i) and 69
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Gentek Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales (excluding Asset Sales under Section 6.9(g)), the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses the case of other non-Cash proceeds) (i), ) are less than $200,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) and (iii) when aggregated with the proceeds of all other Asset Sales made within the definition of “Asset Sale”;
(d) Asset Salessame Fiscal Year, provided, are less than $1,000,000; provided (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(fe) disposals of leased Permitted Acquisitions, the cash consideration for which constitutes (i) for so long as the Leverage Ratio is greater than or financed automobiles equal to 3.0:1.0, less than $12,500,000 in the ordinary course of businessA&R FIRST LIEN CREDIT AND GUARANTY AGREEMENT aggregate in any Fiscal Year and (ii) at any time after the Leverage Ratio has fallen below 3.0:1.0, less than $25,000,000 in the aggregate in any Fiscal Year; provided, however, that in the Fiscal Year 2005, the cash consideration for Permitted Acquisitions shall be less than $45,000,000;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made in accordance with Section 6.7; and
(g) Asset Sales of equipment in connection with Permitted Sale-Leasebacks, provided that the proceeds of any such Permitted Sale-Leaseback shall be entirely in cash and shall not be less than 100% of the fair market value of the equipment being sold (determined in good faith by the board of advisors of Company (or similar governing body)).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Reprographics CO)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantially all part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Restricted Subsidiary of Company Borrower may be merged with or into Company Borrower or any Guarantor Restricted Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor Restricted Subsidiary; provided, (i) in the case of such a merger, Company Borrower or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered that a Guarantor Subsidiarymay only be merged, liquidated or consolidated into Borrower or another Person that is a Guarantor when such merger, liquidation or consolidation occurs.
(b) any Subsidiary sales or other dispositions of assets that do not constitute Asset Sales;
(other than the Companyc) (i) that is no longer useful licensing arrangements in respect of Intellectual Property permitted under Section 6.2(k), and (ii) the sale, disposal, abandonment, cancellation or lapse of Intellectual Property rights, or any issuances or registrations, or applications for issuances or registrations, of any Intellectual Property rights, that, in the reasonable good faith determination of Borrower, are not material to the conduct of the business of Borrower or any of its Subsidiaries;
(d) disposals of damaged, obsolete, worn out or surplus property;
(e) Permitted Acquisitions; provided, with respect to acquisition targets that do not become Guarantors or are not domiciled within the Company United States, the consideration for such Persons or assets shall not exceed, collectively with any Investment permitted under Section 6.6(b) in Restricted Subsidiaries other than Guarantors, more than $10,000,000;
(f) Investments made in accordance with Section 6.6;
(g) Borrower or any Restricted Subsidiary may merge with any other Person in order to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 5.16;
(h) (A) the exchange of equipment (including slot machines, Interactive Gaming Systems, Associated Equipment and other gaming devices) for other similar equipment, which is used or useful in a Permitted Business, and (B) any exchange of undeveloped land (including a combination of assets and Cash Equivalents) for assets used or useful in a Permitted Business of comparable or greater market value or useful to the business of Borrower and its Restricted Subsidiaries as a whole, in each case so long as, if the assets are exchanged by a Credit Party, the assets to be received in such exchange are received by a Credit Party;
(i) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(j) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(k) an issuance of Equity Interests, indebtedness or other securities by (A) a Restricted Subsidiary to Borrower or to a Restricted Subsidiary or (iiB) by Borrower, in each case, to the extent not prohibited hereunder;
(l) the granting of which liquidation Liens or dissolution is any lease or grant of interest, in each case, in accordance with Section 6.2;
(m) the best interest sale or other disposition of cash or Cash Equivalents;
(n) with respect to any property or asset (tangible or intangible, real or personal), any of the Companyfollowing: (a) any loss, each destruction or damage of such property or asset; (b) any actual condemnation, seizure or taking by exercise of the power of eminent domain or otherwise of such property or asset, or confiscation of such property or asset or the requisition of the use of such property or asset; or (c) any settlement in lieu of clause (b) above;
(o) any exchange by Borrower or a Restricted Subsidiary of assets with a fair market value less than $5,000,000 (including a combination of assets and Cash Equivalents) for assets used or useful in a Permitted Business of comparable or greater market value or usefulness to the business of Borrower and its Restricted Subsidiaries as a whole, as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionBorrower;
(cp) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, ; provided,
(1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)Borrower), (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterand Cash Equivalents, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds Proceeds, if any, thereof shall be applied as required by Section 2.14(a) and (4) the aggregate amount of all assets so disposed of shall not account for more than 35% of the net revenue of Borrower and its Restricted Subsidiaries as of the date of such disposition (as reflected on the most recent financial statements delivered pursuant to Section 5.1); provided that any Asset Sale or series of related Asset Sales of assets with a fair market value of not more than $25,000,000 shall not be subject to the limitations of this clause (4);
(eq) disposals of obsolete, worn out the cancellation or surplus property;
(f) disposals of leased or financed automobiles forgiveness in the ordinary course of businessbusiness of any loan or advance to any employee of Borrower or its Restricted Subsidiaries;
(gr) Permitted Acquisitionsthe unwinding of Hedge Obligations;
(hs) Reinvestments permitted under Section 2.14(a) any Immaterial Subsidiary may liquidate, wind up or (b)dissolve or change its legal form if Borrower determines in good faith that such liquidation or dissolution is in the best interests of Borrower and is not materially disadvantageous to the Lenders; and
(it) Investments made Sale and Leaseback Transactions to the extent such transactions are permitted under Section 6.10 and the Attributable Indebtedness in accordance with respect thereof is permitted under Section 6.76.1(y).
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (American Casino & Entertainment Properties LLC)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Borrower may be merged with or into Company Borrower or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales (i) the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses (i)the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made from the Closing Date to the date of determination, are less than $50,000,000 in the aggregate and (ii) and (iii) by Foreign Subsidiaries of Borrower organized under any of the definition laws of “Asset Sale”;
(d) Asset SalesCanada and/or Province or Territory thereof, or by Borrower of the Equity Interests in such Foreign Subsidiaries; provided, in each case (1) except with respect to the licensing of property in the ordinary course of business, 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 Company Borrower (or similar governing body)), (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.15(a);
(ed) disposals of obsolete, worn out or surplus property;
(e) Permitted Acquisitions, for which the aggregate amount of Cash consideration for all such Permitted Acquisitions from the Closing Date to the date of determination does not exceed the sum of (i) $50,000,000 plus (ii) the aggregate amount of the proceeds of Equity Interests issued to finance such Permitted Acquisition within 180 days of such issuance and received by the Borrower since the Closing Date (and not otherwise required to be used to prepay Loans pursuant to Section 2.15(c) hereof or used to prepay, redeem, retire or purchase Senior Notes as provided herein);
(f) disposals of leased or financed automobiles in the ordinary course of businesssale-leaseback transactions permitted by Section 6.10;
(g) Permitted Acquisitionssales and other dispositions of Non-Core Assets, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other such sales or dispositions of Non-Core Assets made from the Closing Date to the date of determination, are less than $40,000,000 in the aggregate (when aggregated with sale-leaseback transactions pursuant to Section 6.10(i) and (ii)); provided (1) 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 (or similar governing body)), (2) no less than 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.15(a);
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.76.6;
(i) any Foreign Subsidiary of Borrower may be merged with or into a wholly-owned Foreign Subsidiary of Borrower, or be liquidated, wound up or dissolve, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a wholly owned Foreign Subsidiary of Borrower; and
(j) the merger of a special purpose subsidiary, a majority of the voting Equity Interests of which is owned by one or more Permitted Holders, into Borrower; provided, however, that (i) the Borrower is the surviving corporation, (ii) no Default in Event of Default exists immediately before or immediately after the consummation of such merger, (iii) such special purpose subsidiary shall be an entity formed solely for the purpose of acquiring the Equity Interests of Borrower and merging with and into the Borrower, and shall have no liabilities, indebtedness or other obligations, (iv) the Administrative Agent shall be satisfied that, immediately after the consummation of such merger, there shall be no adverse change in the financial position, stockholders’ equity or results of operations of the Borrower as surviving entity and its subsidiaries, or in the tax, accounting, legal, environmental, regulatory and other issues relevant to the Borrower as surviving entity and its subsidiaries than immediately prior to such merger and (v) the Credit Parties shall take all such actions and execute and deliver, or cause to be executed and delivered, all such mortgages, documents, instruments, agreements, opinions and certificates (including, without limitation, similar to those described in Sections 3.1(g), 3.1(h) and 3.1(i)) requested by the Administrative Agent.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Movie Gallery Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, supplies, intellectual property, materials and equipment and Capital Expenditures in the ordinary course of business) the business, or all or substantially all of the property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company NewPageCo may be merged with or into Company NewPageCo or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company NewPageCo or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company NewPageCo or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice Person and any Subsidiary of such action, (iii) no Default NewPageHoldCo which is not a Guarantor Subsidiary may be merged with or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall into any Wholly-Owned Subsidiary which is not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary., or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions to any Wholly-Owned Subsidiary which is not a Guarantor Subsidiary;
(b) any Subsidiary (sales, leases, licenses or other than the Company) (i) dispositions of assets that do not constitute Asset Sales and sales of equipment that is obsolete, worn-out, condemned or no longer used or useful in the business of the Company NewPageHoldCo, NewPageCo or (ii) any of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionSubsidiaries;
(c) sales Asset Sales by NewPageCo or any of its Subsidiaries, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses (i), (iithe case of other non-Cash proceeds) do not exceed $200,000,000 in the aggregate for all such Asset Sales from and (iii) of after the definition of “Asset Sale”;Second Amendment Closing Date; provided
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company NewPageCo (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)2.14;
(d) Permitted Acquisitions, the consideration for which constitutes less than $150,000,000 in the aggregate from the Closing Date to the date of determination;
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7; and
(f) prior to receipt of notice from the Administrative Agent or the Collateral Trustee given after the occurrence of an Event of Default, the settlement or write-off of accounts receivable or sale of overdue accounts receivable for collection in the ordinary course of business consistent with past practice.
Appears in 1 contract
Samples: Term Loan Credit and Guaranty Agreement (NewPage CORP)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Domestic Subsidiary of Company Holdings may be merged with or into Company Borrower or any Guarantor SubsidiaryDomestic Credit Party, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor SubsidiaryDomestic Credit Party; provided, (i) in the case of such a merger, Company Borrower or such Guarantor SubsidiaryDomestic Credit Party, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Foreign Subsidiary (other than the Company) (i) that is no longer useful of Borrower may be merged with or into Borrower or any Foreign Credit Party, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in the business one transaction or a series of the Company transactions, to Borrower or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any timeForeign Credit Party; provided, that (x) all assets in the case of such Subsidiary are transferred to another a merger, Borrower or such Foreign Credit Party, (y) such dissolution is not materially disadvantageous to as applicable shall be the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutioncontinuing or surviving Person;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset Sales, providedthe proceeds of which (i) are less than $250,000 with respect to any single Asset Sale or series of related Asset Sales, and (ii) when aggregated with the proceeds of all other Asset Sales made within the trailing twelve month period, are less than $500,000; provided (1) except with respect to the licensing of property in the ordinary course of business, 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 Company Borrower (or similar governing body)), (2) no less than 80100% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals of obsolete, obsolete or worn out or surplus property;
(f) disposals of leased or financed automobiles property in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made in accordance with Section 6.7;
(g) dispositions among Holdings and its Subsidiaries (upon voluntary liquidation or otherwise); provided that if the transferor is a Credit Party and the transferee thereof is not, such disposition shall be deemed to be an Investment required to be permitted under Section 6.7;
(h) dispositions made to comply with any order of any Governmental Authority or anya pplicable law;
(i) dispositions of letters of credit and/or bank guarantees (and/or the rights thereunder) to banks or other financial institutions in the ordinary course of business in exchange for Cash and/or Cash Equivalents;
(j) dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of Holdings and the Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such office; provided that as to each and all such sales and closings, (i) on the date on which the agreement governing such disposition is executed, no Event of Default shall result and (ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm's-length transaction;
(k) dispositions (i) in connection with the termination or unwinding of Hedging Transactions, (ii) constituting payments of Escrow Amounts pursuant to the Escrow Agreement and the Closing Date Acquisition Agreement, (iii) otherwise permitted under Section 6.5(h) above, and (iv) of any escrow accounts after all amounts therein have been disbursed in accordance with the Escrow Agreement and the Closing Date Acquisition Agreement;
(l) termination of leases in the ordinary course of business, (ii) the expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinary course of business;
(m) dispositions of property subject to casualty, foreclosure, eminent domain, expropriation or condemnation proceedings (including in lieu thereof or any similar proceeding);
(n) dispositions of equipment to the extent that (i) such equipment is exchanged in whole (but not in part) for credit against the purchase price of similar replacement personal property or (ii) the entire net proceeds of such disposition are promptly applied to the purchase price of such replacement equipment;
(o) dispositions, discounting or forgiveness of accounts receivable in the ordinary course of business (including to insurers which have provided insurance as to the collection thereof) or in connection with the collection or compromise thereof (including sales to factors);
(p) dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under an open source license), which (i) do not materially interfere with the business of Holdings and its Subsidiaries (taken as a whole) or (ii) relate to closed facilities or the discontinuation of any product or service line;
(q) dispositions of Cash Equivalents or other assets that were Cash Equivalents when the original Investment was made (in each case, for the fair market value thereof);
(r) Disposition of assets the proceeds of which do not exceed $250,000 in any Fiscal Year (which amount shall exclude any fees, cash payment or other consideration received by Holdings or any of its Subsidiaries in connection with the early termination or modification of any contract);
(s) Holdings or any of its Subsidiaries may acquire (whether by purchase, merger or otherwise) all or substantially all the assets of a Person or line of business or division of such Person, or greater than 50% of the Capital Stock ((x) other than directors' qualifying shares and (y) including any investment in any Person which serves to increase the ownership of Holdings or any of its Subsidiaries in such Person) of a Person (referred to herein as the "Acquired Entity", and each such acquisition of assets, line of business or division or Capital Stock permitted under this clause (s), a “Permitted Acquisition”); provided that:
(i) immediately prior to, and after giving effect to, such Acquisition, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(ii) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations;
(iii) in the case of an Acquisition of Capital Stock, all of the Capital Stock (except for any such Securities in the nature of directors’ qualifying shares required pursuant to applicable law) acquired or otherwise issued by such Person or any newly formed Guarantor Subsidiary of a Credit Party in connection with such Acquisition shall be owned 100% by the Borrower or a Guarantor Subsidiary thereof, and Borrower or such Guarantor Subsidiary shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of Borrower or such Guarantor Subsidiary, each of the actions set forth in Sections 5.10 and/or 5.11, as applicable;
(iv) Holdings and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.8 on a pro forma basis after giving effect to such acquisition as of the last day of the Fiscal Quarter most recently ended as determined in accordance with Section 6.8(c) (with such pro forma adjustments as are approved by the Administrative Agent);
(v) Borrower shall have delivered to the Administrative Agent at least 10 Business Days prior to such proposed Acquisition, a Compliance Certificate evidencing compliance with Section 6.8 as required under clause (d) above, together with the historical audited financial statements of the Person or business being acquired (or, in the absence of such historical audited financial statements, such other financial information as is reasonably acceptable to the Administrative Agent) and all other relevant financial information with respect to such acquired Person or assets, including, without limitation, the aggregate consideration for such acquisition and any other information required to demonstrate compliance with Section 6.8;
(vi) any Person, assets or division as acquired in accordance herewith (i) shall be in same business or lines of business in which Holdings and/or its Subsidiaries are engaged as of the Closing Date or businesses reasonably ancillary, corollary related or complementary thereto and (ii) for the four quarter period most recently ended prior to the date of such acquisition, shall have Consolidated Adjusted EBITDA (as adjusted by pro forma adjustments as are approved by the Administrative Agent in its reasonable discretion) that is not negative;
(vii) the acquisition shall have been approved by the board of directors or other governing body or controlling Person of the Person acquired or the Person from whom such assets or division is acquired;
(viii) after giving effect to such acquisition, (i) the sum of Unrestricted Cash- on-Hand and undrawn Revolving Commitments shall equal or exceed $4,000,000 and (ii) the sum of all amounts payable in connection with all such acquisitions (including all transaction costs and all Indebtedness, liabilities, “earn-outs”, holdbacks and contingent obligations incurred or assumed in connection therewith) shall not exceed $5,000,000 individually or $15,000,000 in the aggregate during the term of this Agreement;
(ix) all non-Cash consideration payable by any Credit Party in connection with all such acquisitions shall be Subordinated Indebtedness permitted to be incurred under Section 6.1(q); and
(x) Borrower delivers to the Administrative Agent a certificate certifying compliance with the conditions in this definition, including calculations where applicable; and
(t) dispositions in connection with reorganizations and related activities related to tax planning or in connection with, or preparation for, an initial public offering; provided that, after giving effect to any such reorganization, restructuring or activity, neither the Guaranty, taken as a whole, nor the value of the Collateral, taken as a whole, is impaired; provided, further, that the Credit Parties obtain the prior written consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) prior to making any such dispositions; provided, however, that notwithstanding anything to the contrary contained herein, in no event shall the preceding clauses (a) through (r) permit any Credit Party or any Subsidiary of any Credit Party to sell, lease, assign, transfer or otherwise dispose of any Material Intellectual Property, or any Capital Stock of any Person that owns Material Intellectual Property, in each case, to any Person that is not a Domestic Credit Party, but excluding for the avoidance of doubt, any non-exclusive licensing arrangements otherwise expressly permitted by this Agreement.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (GPB Holdings II, LP)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor The Company shall it not and shall not permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of the Company may be merged with or into the Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, the Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) assets that do not constitute Asset Sales, provided, including any sales or disposition of assets (1including inventory) except with respect to the licensing of property in the ordinary course of business;
(c) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made since the Closing Date, are less than $90,000,000; provided (1) 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on Cash; provided, that this clause (2) shall not apply to Asset Sales the date aggregate consideration of such sale or within six months thereafterwhich is less than $12,000,000 in any Fiscal Year, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(f) disposals of leased property whether or financed automobiles not owned or hereafter acquired in the ordinary course of business;
(ge) Permitted Acquisitions, the consideration for which constitutes (i) less than $30,000,000 in the aggregate in any Fiscal Year, and (ii) less than $120,000,000 in the aggregate from the Closing Date to the date of determination; provided that in the case of Permitted Acquisitions of non-US Persons, the consideration shall not exceed more than $24,000,000 in the aggregate in any Fiscal Year;
(f) Investments made in accordance with Section 6.6;
(g) abandonment or other disposition of patents, trademarks or other intellectual property that are, 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) Reinvestments permitted under Section 2.14(a) intercompany sale or transfer of patents, trademarks or other intellectual property related to the textile products segment of the Company, the fair market value of which is less than $36,000,000, to Day German Holdings GmbH or one of its Subsidiaries for consideration consisting of cash and/or intercompany Indebtedness; provided that consideration received for such assets shall be in an amount at least equal to the fair market value thereof (bdetermined in good faith by the board of directors of the Company); and
(i) Investments made any sale or discount of accounts receivable arising in accordance the ordinary course of business, but only in connection with Section 6.7the compromise or collection thereof or to resolve disputes that occur in the ordinary course of business.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Day International Group Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, supplies, intellectual property, materials and equipment and Capital Expenditures in the ordinary course of business) the business, or all or substantially all of the property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company NewPageCo may be merged with or into Company NewPageCo or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company NewPageCo or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company NewPageCo or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice Person and any Subsidiary of such action, (iii) no Default NewPageHoldCo which is not a Guarantor Subsidiary may be merged with or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall into any Wholly-Owned Subsidiary which is not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary., or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions to any Wholly-Owned Subsidiary which is not a Guarantor Subsidiary;
(b) any Subsidiary (sales, leases, licenses or other than the Company) (i) dispositions of assets that do not constitute Asset Sales and sales of equipment that is obsolete, worn-out, condemned or no longer used or useful in the business of the Company NewPageHoldCo, NewPageCo or (ii) any of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionSubsidiaries;
(c) sales Asset Sales by NewPageCo or any of its Subsidiaries, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses (i), (iithe case of other non-Cash proceeds) do not exceed $200,000,000 in the aggregate for all such Asset Sales from and (iii) of after the definition of “Asset Sale”;Third Amendment Closing Date; provided
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company NewPageCo (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)2.14;
(d) Permitted Acquisitions, the consideration for which constitutes less than $150,000,000 in the aggregate from the Closing Date to the date of determination;
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7; and
(f) prior to receipt of notice from the Collateral Agent given after the occurrence of an Event of Default, the settlement or write-off of accounts receivable or sale of overdue accounts receivable for collection in the ordinary course of business consistent with past practice.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (NewPage CORP)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, supplies, intellectual property, materials and equipment and Capital Expenditures in the ordinary course of business) the business, or all or substantially all of the property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company NewPageCo may be merged with or into Company NewPageCo or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company NewPageCo or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company NewPageCo or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice and any Subsidiary of such action, (iii) no Default NewPageHoldCo which is not a Guarantor Subsidiary may be merged with or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall into any Wholly-Owned Subsidiary which is not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary., or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions to any Wholly-Owned Subsidiary which is not a Guarantor Subsidiary;
(b) any Subsidiary (sales, leases, licenses or other than the Company) (i) dispositions of assets that do not constitute Asset Sales and sales or other dispositions of equipment that is obsolete, worn-out, condemned or no longer used or useful in the business of the Company NewPageHoldCo, NewPageCo or (ii) any of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith its Subsidiaries and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all other assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens set forth on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionSchedule 6.9;
(c) sales Asset Sales by NewPageCo or any of its Subsidiaries, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses (i), (iithe case of other non-Cash proceeds) do not exceed $400,000,000 in the aggregate for all such Asset Sales from and (iii) of after the definition of “Asset Sale”;
(d) Asset Sales, provided, Closing Date; provided (1) except with respect to the licensing of property in the ordinary course of business, 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 Company NewPageCo (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)2.14;
(d) Permitted Acquisitions, the consideration for which constitutes less than $300,000,000 in the aggregate from the Closing Date to the date of determination;
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7; and
(f) prior to receipt of notice from the Collateral Agent given after the occurrence of an Event of Default, the settlement or write-off of accounts receivable or sale of overdue accounts receivable for collection in the ordinary course of business consistent with past practice.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (NewPage CORP)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, or, without limiting the foregoing, make or enter into any sale, lease or sub lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party which is not Holdings), in one transaction or a series of transactions, of all or any part of any Credit Party’s or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, including, without limitation, the Capital Stock of any Credit Party or Subsidiary thereof, including (x) the sale or other disposition for value of any contracts and (y) the early termination or modification of any contract resulting in the receipt by any Credit Party or any of its Subsidiaries of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification)) (each of the foregoing, an “Asset Sale”), except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into any Company or any Guarantor Subsidiary(other than Holdings), or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor SubsidiaryCompany; provided, (i) in the case of such a merger, such Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, provided further, for purposes of this that Glacier Water may merge with and into Primo as required under Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.5.15;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business sales, licenses for periods of the Company one year or (ii) less or leases of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property inventory in the ordinary course of business;
(c) Asset Sales, the proceeds of which (i) are less than $150,000 with respect to any single Asset Sale or series of related Asset Sales, and (ii) when aggregated with the proceeds of all other Asset Sales made within the trailing twelve month period, are less than $500,000; provided (1) 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 applicable Company or Subsidiary (or similar governing body)), (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.13(a);
(ed) disposals of obsolete, obsolete or worn out or surplus property;
(f) disposals of leased or financed automobiles property in the ordinary course of business;
(ge) Permitted Acquisitions, the aggregate consideration for which constitutes (i) less than $6,000,000 with respect to any single acquisition, and (ii) less than $12,000,000 in the aggregate from the Closing Date to the date of determination;
(f) the Closing Date Acquisition;
(g) the grant in the ordinary course of business by any Company or any of its Subsidiaries after the date hereof of a non-exclusive license of any intellectual property or any exclusive license of any intellectual property in connection with the sale by the Credit Parties and their Subsidiaries of water dispensers; provided, that, the rights of the licensee shall be subject to the rights of the Collateral Agent, and shall not adversely affect, limit or restrict the rights of the Collateral Agent to use such intellectual property or to sell or otherwise dispose of any inventory or other Collateral in connection with the exercise by the Collateral Agent of any rights or remedies hereunder or under any of the Credit Documents, or otherwise adversely limit or interfere in any material respect with the use of any such intellectual property by the Collateral Agent in connection with the exercise of its rights or remedies hereunder or under any of the Credit Documents or by any Company or Subsidiary; provided further, that if the upfront payment in connection with any such grant exceeds $500,000, then such payment shall be applied in accordance with Section 2.13(a);
(h) Reinvestments the issuance of Capital Stock by Companies; provided, that, (x) no Company or Subsidiary shall be required to pay any cash dividends, distributions or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise expressly permitted under in Section 2.14(a6.5 and (y) or (b); andexcept with respect to Capital Stock issued by Holdings, such Capital Stock shall be issued to another Credit Party and shall be subject to a perfected First Priority Lien in favor of the Collateral Agent;
(i) the issuance of Capital Stock by Holdings consisting of common stock (or its equivalent) pursuant to the Primo Water Corporation 2010 Omnibus Long-Term Incentive Plan, Primo Water Corporation 2010 Employee Stock Purchase Plan or any similar equity plan or 401(k) plan of the Companies and their Subsidiaries for the benefit of their employees, directors and officers;
(j) the abandonment or other disposition of Intellectual Property that is not material to and is no longer used or useful in any material respect in, the business of any Company or any of its Subsidiaries and does not appear on or is otherwise not affixed to or incorporated in any inventory or equipment or have any material value (including, without limitation, any intellectual property associated with the sale of intellectual property to Omnifro Beverage Company, LLC);
(k) involuntary dispositions of property occurring by reason of casualty or condemnation;
(l) Investments made in accordance with Section 6.7.;
(m) any Subsidiary of a Credit Party that is not itself a Credit Party may merge with and into any other Subsidiary that is not a Credit Party;
(n) any dormant Subsidiary with no assets or operations (or de minimis assets with an aggregate fair market value less than $5,000) may dissolve; and
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into Company or any Guarantor Domestic Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Domestic Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Domestic Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (other than the Company) (i) that is no longer useful of Autocam France may be merged with or into Autocam France or with or into any Wholly Owned Subsidiary of Autocam France, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in the business one transaction or a series of the Company transactions, to Autocam France or (ii) to any Wholly Owned Subsidiary of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any timeAutocam France; provided, that (x) all assets in the case of such a merger, Autocam France or the Wholly Owned Subsidiary are transferred to another Credit Partyof Autocan France, (y) such dissolution is not materially disadvantageous to as the Lenderscase may be, and (z) all Liens on assets of such Subsidiary are maintained for shall be the benefit of Collateral Agent subsequent to any dissolutioncontinuing or surviving Person;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset Sales, providedthe proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) (i) are less than $5,750,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $11,500,000; provided (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 8075% thereof shall be paid in Cash on the date or in securities, notes or other obligations converted into Cash within 30 days of such sale or within six months thereafter, excluding any sales of Axid® OS receipt and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.11(a);
(e) disposals of obsolete, worn out or surplus propertyproperty or disposals of equipment, by means of trade in, so long as such equipment is replaced, substantially concurrently, by like kind equipment in an effort to upgrade any facilities of Company and its Subsidiaries;
(f) disposals Permitted Acquisitions, the consideration for which (including, without limitation, cash paid, or acquired or assumed Indebtedness and the value of leased any other consideration paid or financed automobiles given (other than the assumption of current liabilities (other than the current portion of any funded Indebtedness) incurred in the ordinary course of businessbusiness of the subject of such acquisition) in the aggregate from the Closing Date to the date of determination does not exceed the Permitted Acquisition Cap;
(g) Permitted AcquisitionsCompany may liquidate any of its Subsidiaries that has total net assets (as shown on the most recent balance sheet of such Subsidiary delivered to the Agents and at the time of liquidation) of $115,000 or less, provided, any Restricted Junior Payments in connection with such liquidation are made in accordance with Section 6.5;
(h) Reinvestments permitted sales of Capital Stock in any Subsidiary to qualify directors or allow for investments by foreign nationals, in either case, to the extent required by applicable law;
(i) sales of receivables and related rights under Section 2.14(aReceivables Facilities (including the French Receivables Facility) or (b)in an aggregate Principal Amount outstanding from time to time not to exceed the Dollar Equivalent of $28,750,000; and
(ij) Investments made in accordance with Section 6.76.7 and any grant of a Permitted Lien.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or consummate a Disposition, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of Company the Issuer (including those listed on Schedule 6.8) may be merged with or into Company the Issuer or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Issuer or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company the Issuer or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, ; or (ii) Company gives subject to the Agents ten days’ prior written notice requirements of such actionSection 6.13 any Subsidiary of Holdings that is a direct or indirect parent entity of the Issuer may be merged with or into another Guarantor that is a direct or indirect parent entity of the Issuer, (iii) no Default or Event of Default shall have occurred or be continuing either before liquidated, wound up or after giving effect theretodissolved, and (iv) or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to another Guarantor that is a direct or indirect parent entity of the Collateral Agent’s Liens in Issuer, so long as Holdings remains the Collateral shall not be affected in any manner thereby; provided, further, for purposes direct or indirect parent entity of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.the Issuer;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales (x) Asset Sales, including the sale of Machine Assets, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at Fair Market Value in clauses the case of other non-Cash proceeds) (i)) are less than $1,000,000 with respect to any single Asset Sale or series of related Asset Sales, (ii) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $2,500,000 and (iii) when aggregated with the proceeds of all other Asset Sales made during the definition term of “Asset Sale”;
(d) Asset Salesthis Agreement, provided, are less than $5,000,000; provided (1) except with respect to the licensing of property in the ordinary course of business, the consideration received for such assets shall be in an amount at least equal to the fair market value Fair Market Value thereof (determined in good faith by the board of directors of Company the Issuer (or similar governing body)), (2) no less than 80100% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.10(a); and (y) Asset Sales of Machine Assets in the ordinary course of business following the expiration or termination of the applicable customer contract or other arrangement with respect to such Machine Assets, provided that the net book value of all Machine Assets so sold shall not exceed $3,000,000 in the aggregate in any Fiscal Year;
(ed) disposals of obsolete, worn out or surplus property;
(e) Permitted Acquisitions;
(f) disposals Investments made in accordance with Section 6.6 or Dispositions of leased Subsidiary Interests made in accordance with Section 6.9;
(g) the use of cash or financed automobiles Cash Equivalents in a manner not prohibited by the Loan Documents;
(h) (i) non-exclusive licenses, sublicenses, leases or subleases granted to third parties in the ordinary course of business not interfering with the business of the Holdings and its Subsidiaries, taken as a whole and (ii) exclusive licenses created after the Closing Date of assets or Intellectual Property with respect to any particular country or geographic region, where (x) the aggregate revenues generated by such country or geographic region does not represent more than 3% (or, in the case of the U.S., 10%) of the total revenues of Holding and its Subsidiaries for the most recent period of four consecutive Fiscal Quarters on or prior to the date of the granting of such license and (y) such exclusive licenses do not interfere in any respect with the ordinary course of business, or materially detract from the value of, the business of Holdings and its Subsidiaries;
(i) the lapse, abandonment or other dispositions of Intellectual Property that is, in the reasonable good faith judgment of a Credit Party, no longer economically practicable or commercially desirable to maintain or useful in the conduct of the business of Holdings and its Subsidiaries;
(j) dispositions resulting from Casualty Events upon receipt of the Net Insurance/Condemnation Proceeds of such Casualty Event;
(k) sales, forgiveness or discounting, on a non-recourse basis and in the ordinary course of business, of past due accounts in connection with the collection or compromise thereof or the settlement of delinquent accounts or in connection with the bankruptcy or reorganization of suppliers or customers;
(l) the granting of Permitted Liens and the making of Restricted Payments otherwise permitted under Section 6.4;
(i) the expiration of any option held Holdings or any Subsidiary, (ii) the termination of any lease in the ordinary course of business and (iii) any surrender, termination or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
(gn) Permitted Acquisitionsany disposition of assets consummated in connection with the liquidation, winding up or dissolution of any Inactive Subsidiary set forth on Schedule 6.8;
(ho) Reinvestments permitted under Section 2.14(ato the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (bii) the proceeds of the relevant disposition are promptly applied to the purchase price of such replacement property; provided that no Machine Assets shall be exchanged or otherwise Disposed pursuant to this clause (n);
(p) termination of Hedging Agreements in the ordinary course of business; and
(iq) Investments made dispositions of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in accordance with Section 6.7lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement.
Appears in 1 contract
Samples: Note Purchase Agreement (Inspired Entertainment, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable applicable, shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) dispositions of assets (i) that is no longer useful in the business of the Company do not constitute Asset Sales or (ii) of which liquidation made to Company or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionGuarantor Subsidiary;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) the dissolution of the definition Foreign Subsidiaries of “Asset Sale”Vivitar Corporation specified on Schedule 6.8(c); provided, that any assets contained in any such Foreign Subsidiary are transferred to Vivitar Corporation upon the dissolution of such Foreign Subsidiary;
(d) Asset Sales(i) the proposed sale of the LCoS business unit of Company pursuant to the Agreement in Principle, dated as of October 21, 2007, between Company and Compound Phototonics Ltd., and (ii) certain proposed licensing transactions relating to the transactions described in clause (i) above; provided, that in each case, that (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)) of such Person), (2) except in the case of clause (i) above, no less than 80% one hundred percent (100%) thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.13(a);
(e) disposals Asset Sales, the proceeds of obsoletewhich, worn out when aggregated with the proceeds of all other Asset Sales or surplus propertyseries of related Asset Sales made within the same Fiscal Year, are less than $500,000; provided that (1) 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 (or similar governing body) of such Person), (2) no less than one hundred percent (100%) thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.13(a);
(f) disposals of leased obsolete or financed automobiles worn out property, the proceeds of which, when aggregated with all other dispositions made pursuant to this clause (d) in any Fiscal Year are less than $500,000; provided that the ordinary course 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 businessdirectors (or similar governing body) of the Credit Party making such disposition);
(g) Permitted Acquisitions, the aggregate consideration for which constitutes less than $1,000,000 in the aggregate from the Closing Date to the date of determination;
(h) Reinvestments permitted under Section 2.14(a) or (b)Sales of Accounts made pursuant to the Factoring Agreement; and
(i) Investments made in accordance with Section 6.76.6.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Syntax-Brillian Corp)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit permit, any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of real property, inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) the Company or any of its Subsidiaries may consolidate with or merge with or into or sell, assign, convey, lease or transfer all or substantially all of its properties and assets if (i) the Company or such Subsidiary shall be the continuing Person, or the resulting, surviving or transferee Person (the “surviving entity”) shall be a Person organized and existing under the laws of the United States or any State thereof or the District of Columbia; and (ii) the surviving entity (other than an existing Guarantor) shall expressly assume, pursuant to documentation delivered to the Company) (i) that is no longer useful in Administrative Agent, all of the business obligations of the Company or (ii) of which liquidation such Subsidiary, as applicable under the Credit Documents, and the Company or dissolution is the surviving entity shall have taken all steps necessary to perfect and protect the security interests granted or purported to be granted by the Collateral Documents in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionapplicable Collateral;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof of which, if any, shall be applied as required by Section 2.14(a2.12(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals Permitted Acquisitions made by Company and its Subsidiaries;
(g) Investments made in accordance with Section 6.5;
(h) entering into “Irrevocable Right of leased Use” agreements and capacity agreements with other Persons by, and leases or financed automobiles subleases to or from other Persons of assets by, Company or any Subsidiary of Company, in each case, in the ordinary course of business;
(gi) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) licenses to or (b); from other Persons of Intellectual Property by Company or any Subsidiary of Company thereof in the ordinary course of business and
(ij) Investments made in accordance Asset Sales pursuant to existing contracts with Section 6.7Level 3 Communications, Inc. listed on Schedule 1.1(b).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Xo Communications Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and materials, equipment and Capital Expenditures other fixed or capital assets in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company the Borrower may be merged with or into Company the Borrower or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company the Borrower or such Guarantor Subsidiary(and in any event, if the Borrower is party to such transaction, the Borrower), as applicable applicable, shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Dispositions;
(c) sales Dispositions, the proceeds of which (valued at the principal amount thereof in the case of non-cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses the case of other non-cash proceeds) (i), ) are less than $1,000,000 with respect to any single Disposition or series of related Dispositions and (ii) and when aggregated with the proceeds of all other Dispositions made pursuant to this clause (iiic) of within the definition of “Asset Sale”;same fiscal year, are less than $5,000,000; provided
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company the Borrower (or similar governing body)), (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS cash and (3) the Net Asset Sale Cash Proceeds thereof shall be applied as required by Section 2.14(a2.05(b);
(ed) disposals of obsolete, worn out or surplus propertyPermitted Transfers;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(ie) Investments made in accordance with Section 6.78.06;
(f) leases or subleases of real or personal property in the ordinary course of business and not interfering in any material respect with the ordinary conduct of or materially detracting from the value of the business of the Borrower and its Subsidiaries; and
(g) sales of non-core assets acquired in a Permitted Acquisition; provided that such sales shall be consummated within 270 days of the Permitted Acquisition provided further (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 (or similar governing body)), (ii) no less than 75% thereof shall be paid in cash and (iii) the Net Cash Proceeds thereof shall be applied as and to the extent required by Section 2.05(b).
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, transactions all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, substantially all property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of the Company may be merged with or into the Company or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets or the Equity Interests issued by it may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions, to the Company or any Guarantor; provided, in the case of such a merger, the Company or such Guarantor, as applicable shall be the continuing or surviving Person; (ii) any Massachusetts securities corporation may be merged with or into any other Massachusetts securities corporation, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets or the Equity Interests issued by it may be conveyed, sold, leased, transferred or otherwise Disposed of, in one transaction or a series of transactions, to any other Massachusetts securities corporation or any U.S. Loan Party; and (iii) any Subsidiary that is not a Loan Party may be merged with or into any other Subsidiary, or be liquidated, wound up or dissolved, or its issued Equity Interests or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed Disposed of, in one transaction or a series of transactions, transactions to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor other Subsidiary.
(b) any Subsidiary (sales, licenses, leases or other than the Company) (i) Dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses Asset Sales; provided (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Board of directors Directors of the Company (or similar governing body)), (2ii) no less than 8070% thereof shall be paid in Cash; provided that for the purpose of this clause (ii), the following shall be deemed to be Cash: (A) any securities received by the Company or such Subsidiary that are converted by the Company or such Subsidiary into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received in such conversion) within 180 days following the closing of the applicable Asset Sale, (B) any Designated Non-Cash Consideration in respect of such Asset Sale having an aggregate fair market value, taken together with the Designated Non-Cash Consideration in respect of all such Asset Sales, not to exceed at any time the greater of (x) $200,000,000 and 3% of Total Assets 225,000,000 and (y) 15% of Consolidated Adjusted EBITDA for the most recent period of four (4) Fiscal Quarters for which financial statements are available. and (C) any liabilities (as shown on the date Company’s then-most recent balance sheet provided hereunder or in the footnotes thereto) of such sale or within six months thereafterthe Company and/or any of its Subsidiaries (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable Disposition and for which the Company and the applicable Subsidiaries shall have been validly released by all applicable creditors in writing, excluding any sales of Axid® OS and (3iii) the Net Asset Sale Proceeds thereof shall be applied as required by or otherwise used in accordance with Section 2.14(a2.05(c)(i) and (iv) at the time of such Asset Sale, no Default or Event of Default shall have occurred and be continuing or would result therefrom (it being understood and agreed that the proceeds of such Asset Sales shall be valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds);
(ed) disposals Disposals of obsolete, worn out or surplus propertyproperty or damaged property no longer useful in the business of the Company and its Subsidiaries (including without limitation, in connection with scheduled maintenance);
(f) disposals of leased or financed automobiles in the ordinary course of business;
(ge) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made or owned in accordance with Section 7.06 and Sale and Leaseback Transactions made in accordance with Section 6.77.09;
(g) (i) the abandonment of rights, franchises, licenses, trade names, copyrights, patents, trademarks or other Intellectual Property that are, in the reasonable judgment of the Company, either no longer economically practicable to maintain or no longer material in the conduct of the business of the Company and its Subsidiaries taken as a whole, (ii) the transfer of Intellectual Property rights (including Permitted Licenses) in settlement of any dispute or litigation with governmental regulatory authorities or otherwise necessary to comply with any legal or regulatory requirement, (iii) the transfer of Intellectual Property rights (including Permitted Licenses) to third parties in settlement of any dispute or litigation with third parties and (iv) the transfer, sale or other disposition of non-core Intellectual Property, which, in the case of clauses (i), (iii) and (iv), does not materially interfere with the conduct of the Company’s or any of its Subsidiaries’ business as conducted on the RestatementSecond Amendment Effective Date (or as permitted by Section 7.11) or materially detract from the value thereof;
(h) sales to a Receivables Entity or transfers by a Receivable Entity of accounts receivable and related assets of the type specified in the definition of “Qualified Receivables Transaction”;
(i) (x) to the extent allowable under Section 1031 of the Code, any exchange of like-kind property (excluding any boot thereon) for use in any business or lines of business in which the Company and/or its Subsidiaries are engaged as of the RestatementSecond Amendment Effective Date (or as permitted by Section 7.11) and (y) or any other exchange for replacement property or for credit to purchase similar replacement property provided that, in each case, to the extent the property exchanged is Collateral, such replacement property shall constitute Collateral;
(j) sales, licenses, leases or other Dispositions of property to the Company or a Subsidiary; provided that if the transferor of such property is a U.S. Loan Party either (i) the transferee thereof must be a U.S. Loan Party, (ii) such sale, license, lease or other Disposition must be for fair market value or (iii) such transaction shall constitute an Investment and must be permitted by Section 7.06;
(k) the unwinding of any Hedge Agreement or Swap Obligations;
(l) sales, transfers and other 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, which do not materially interfere with the conduct of the business of the Company and its Subsidiaries;
(m) the creation of a Lien permitted under Section 7.02 (other than 7.02(w));
(n) dispositions of Investments or accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(o) the sale, discount or other Disposition of accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(p) the taking of any Real Estate Asset by any Person pursuant to the power of eminent domain, condemnation or otherwise; provided that any Net Insurance/ Condemnation Proceeds realized by the Company or any of its Subsidiaries in connection with such taking are applied or otherwise used in accordance with Section 2.05(c)(ii), if applicable;
(q) Dispositions of assets not used or useful in the business of the Company and its Subsidiaries acquired in connection with (i) any Permitted Acquisition or any other acquisition or Investment permitted under this Agreement within 180 days thereof and (ii) any Prior Acquisition (it being understood and agreed that (x) Cash and Cash Equivalents shall not constitute non-core assets and (y) Acquired Non-Investment Grade Securities shall constitute non-core assets); provided that, in regards to any Permitted Acquisition, Prior Acquisition or other acquisition constituting an Investment, the aggregate amount of assets disposed of pursuant to this clause (q) shall not exceed the greater of (x) 20% of the net purchase price of such Permitted Acquisition, Prior Acquisition or other acquisition constituting an Investment, as applicable and (y) 15.5% of Total AssetsConsolidated Adjusted EBITDA for the prior four (4)-Fiscal Quarter period then ending;
(r) (i) any leases or subleases of any Real Estate Asset permitted by Section 7.02 and (ii) Dispositions of leasehold improvements or leased assets in connection with the termination of any operating lease;
(s) the abandonment, termination or lapse of rights, franchises, licenses and permits to the extent permitted by Section 6.02;
(t) Dispositions of mutual funds and other Investments permitted to be made pursuant to Section 7.06(w);
(u) Restricted Junior Payments permitted by Section 7.04 to the extent constituting a Disposition or Asset Sale; and
(v) the Permitted Gen-Probe Asset Sale. For the avoidance of doubt, the formation of a Subsidiary, in and of itself, shall be permitted under this Section 7.08 hereof provided that any capitalization or other initial or subsequent Investment in connection therewith shall be subject to Section 7.06 hereof.
Appears in 1 contract
Samples: Refinancing Amendment (Hologic Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) assets that do not constitute Asset Sales, provided, (1) except ; *** Certain confidential information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the licensing omitted portions.
(c) Asset Sales (other than the FS Tech Sale or any sale of property in any Capital Stock of any Subsidiary of Company), the ordinary course proceeds of business, which are less than $5,000,000 when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year; provided (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 Board of directors Directors of Company (or similar governing body)), (2ii) no less than 80100% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3iii) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)2.12;
(d) disposals of obsolete or worn out property;
(e) disposals at any time after the consummation of obsoletethe FS Tech Sale, worn out Permitted Acquisitions, the aggregate consideration (including any deferred or surplus propertycontingent consideration) for which constitutes (i) less than $5,000,000 in any Fiscal Year, and (ii) less than $10,000,000 in the aggregate from the Closing Date to the date of determination;
(f) disposals of leased or financed automobiles in the ordinary course of businessPermitted Investments;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) that in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles inventory in the ordinary course of business;
(gd) Permitted Acquisitionsdisposals of obsolete or worn out property;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(ie) Investments made in accordance with subsections (a) through (d) of Section 6.7.;
(f) the Closing Date Acquisition;
(g) (i) the execution and delivery of the Bango Sale Agreement by Holdings and the Company, (ii) the acquisition by Vertex Refining NV of all or substantially all of the Capital Stock of Bango Oil, LLC immediately prior to the consummation of the Bango Sale for no more than $9,125,000, (iii) the consummation of the Bango Sale on the terms set forth in the Bango Sale Agreement, and (iv) the release of Liens on the Bango Assets held by Vertex Refining NV in connection therewith; provided, in each case that (x) the Company has irrevocably instructed the buyers in the Bango Sale to wire at least $14,000,000 of the cash proceeds from the Bango Sale directly to the Administrative Agent’s account set forth in Section 2.15(a) and (y) the Company has irrevocably instructed the Fox Agent to wire at least $2,000,000 of the cash proceeds from the Fox Loan directly to the Administrative Agent’s account set forth in Section 2.15(a); and
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor (or, in the case of Subsidiaries that are not Loan Parties, with or into any other Subsidiary), or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor SubsidiaryGuarantor; provided, (i) that in the case of such a merger, Company or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, ;
(iib) Company gives sales of Inventory in the Agents ten days’ prior written notice ordinary course of such action, business;
(iiic) if no Default or Event of Default shall have has occurred and is continuing, the Loan Parties may do the following in good faith, arm’s length transactions, in the ordinary course of business (x) enter into non-exclusive licenses with respect to its intellectual property and (y) trade-in or be continuing either before dispose of obsolete or after giving effect theretounneeded property with an aggregate value of no more than $500,000 during the term of this Agreement;
(d) if no Default or Event of Default has occurred and is continuing, Asset Sales, the proceeds of which (i) are no more than $500,000 with respect to any single Asset Sale or series of related Asset Sales, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) when aggregated with the proceeds of which liquidation or dissolution is in all other Asset Sales made within the best interest of the Companysame Fiscal Year, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any timeare no more than $500,000; provided, that (xA) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Board of directors Directors of Company (or similar governing body)), (2B) no less than 80100% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3C) the Net Proceeds of such Asset Sale Proceeds thereof shall Sale(s) that are required to be applied as required by to the Obligations pursuant to Section 2.14(a)2.13(a) are so applied;
(e) disposals of obsolete, worn out or surplus propertyPermitted Investments;
(f) disposals any Antitrust Divestiture, so long as the Net Proceeds of leased or financed automobiles in any Asset Sale(s) resulting from such Antitrust Divestiture that are required to be applied to the ordinary course of business;Obligations pursuant to Section 2.13(a) are so applied; and
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
, the aggregate consideration for which constitutes (i) Investments made less than $7,000,000 plus an additional $1,000,000 in accordance with Section 6.7the form of Capital Stock of the Company in any Fiscal Year, and (ii) less than $20,000,000 in the aggregate from the Closing Date to the date of determination.
Appears in 1 contract
Samples: Financing Agreement (Model N, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and materials, equipment and Capital Expenditures other assets in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolveddissolved into, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such a Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Foreign Subsidiary (may be merged with or into any other than the Company) (i) that is no longer useful Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in the business one transaction or a series of the Company or (ii) of which liquidation or dissolution is in the best interest of the Companytransactions, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionother Foreign Subsidiary;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”Sales;
(d) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) are less than $100,000,000 in the aggregate; provided,
(1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 8075% thereof shall be paid in Cash on (except in the date case of such sale or within six months thereafterasset swaps), excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(ig) Investments made in accordance with Section 6.7.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Kraton Polymers LLC)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and materials, equipment and Capital Expenditures or other assets in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) Subject to the provisions of Section 6.17, any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor SubsidiaryCompany, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person;
(b) sales or other dispositions of assets that do not constitute Asset Sales;
(c) provided no Default or Event of Default shall have occurred and be continuing, Permitted Business Acquisitions, the aggregate consideration for which constitutes less than the Permitted Business Acquisition Amount;
(iid) Investments made in accordance with Section 6.6;
(e) sales, leases or other dispositions of equipment or other property (including inventory) of Holding or its Subsidiaries determined by the senior management of Holding to be no longer useful or necessary in the operation of the business of Company gives or its Subsidiaries provided that the Agents ten days’ prior written notice Net Asset Sale Proceeds thereof shall be applied in accordance with Section 2.14(a);
(f) sales, leases or other dispositions of such actionproperty having a net book value not in excess of $25,000,000 in any Fiscal Year, provided that (iiii) no Default or Event of Default shall have occurred or and be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, the consideration received for such assets property shall be not less than 75% in Cash and in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Company (or similar governing body)), (2Holding) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be are applied as required by in accordance with Section 2.14(a), provided further, that no sale may be made pursuant to this clause (f) of the Capital Stock of any Subsidiary except in connection with the sale of all its outstanding Capital Stock that is held by Company and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any Fiscal Year is less than $25,000,000, the amount of such difference, but in no case more than $5,000,000, may be carved forward and used for sales, leases, or dispositions of property in the immediately succeeding Fiscal Year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (f) in such Fiscal Year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding Fiscal Year shall lapse and terminate at the end of such Fiscal Year);
(eg) disposals the sale of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles defaulted receivables in the ordinary course of business;
(g) Permitted Acquisitionsbusiness and not as part of an accounts receivables financing transaction;
(h) Reinvestments the Acquisition, the Merger and the mergers required pursuant to Section 5.17(a);
(i) the transactions permitted under by Section 2.14(a6.10.
(j) inactive Subsidiaries may be liquidated or (b)dissolved; and
(ik) Investments made in accordance with Section 6.7sales or dispositions on arms length commercial terms of “Classworks” and/or its product lines.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Houghton Mifflin Co)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course Ordinary Course of businessBusiness) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a1) any wholly owned Subsidiary of Company the Borrower (other than Ethex) may be merged with or into Company the Borrower or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company the Borrower or such Guarantor Subsidiaryother than Ethex, as applicable shall be the continuing or surviving PersonPerson and (2) any non-Guarantor Subsidiary may be merged with or into any other non-Guarantor Subsidiary, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before liquidated, wound up or after giving effect theretodissolved, and (iv) the Collateral Agent’s Liens or all or part of its assets may be conveyed, sold, leased, transferred or otherwise disposed of, in the Collateral shall not be affected in on transaction or a series of transactions, to any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a other non-Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than dispositions of assets that do not constitute Asset Sales and sales or other dispositions of assets constituting Asset Sales to the Company) (i) that is no longer useful in extent the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets Fair Market Value of such Subsidiary are transferred to another Credit Party, (y) assets does not exceed $5,000 per asset sold and $100,000 for all such dissolution is not materially disadvantageous to assets sold from the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionClosing Date;
(c) sales any non-exclusive outbound license of Intellectual Property granted by the Borrower or other dispositions described any of its Subsidiaries in clauses (i), (ii) and (iii) the Ordinary Course of the definition of “Asset Sale”Business consistent with past practice;
(d) Asset Salesthe discount, providedwrite-off or sale of overdue accounts receivables, (1) except with respect to the licensing of property in each case in the ordinary course Ordinary Course of business, 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)Business;
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.76.6; and
(f) the Generics Sale subject to the requirements set forth in Section 5.17 and the Evamist Sale on terms and conditions reasonably satisfactory to the Administrative Agent;
(g) the dissolution of Ethex in accordance with the laws of the State of Missouri and consistent with the terms set forth on Schedule 6.8(g), so long as Ethex’s assets at the time of the commencement of such dissolution did not exceed the amount specified on Schedule 4.31(b);
(h) the liquidation or dissolution of any Subsidiary of the Borrower with assets, the Fair Market Value of which are less than $100,000, so long as the assets then owned by such Subsidiary are transferred free and clear of all Liens, claims and encumbrances (other than the Liens of the Collateral Agent) to and owned by a Credit Party prior to any such liquidation or dissolution;
(i) contemplated sales or other dispositions of assets as set forth on Schedule 6.8;
(j) the disposition of obsolete or worn out property (including the abandonment of Intellectual Property) no longer used or useful in the business of the Borrower and its Subsidiaries, in each case in the Ordinary Course of Business, and dispositions of pharmaceutical products to the extent required by law (provided, that, the cost of all such products disposed from the closing date of the Existing Credit Agreement does not exceed $1,000,000 and the Credit Parties shall not have been precluded from remanufacturing such products);
(k) the sale of the Citibank Auction Rate Securities;
(l) the sale of the Industrial Revenue Bonds and related real property securing such bonds;
(m) the Strides Transaction; and
(n) the dissolution of or winding up Nesher Israel and liquidation of its assets.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Kv Pharmaceutical Co /De/)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales (excluding Asset Sales under Section 6.9(g)), the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses the case of other non-Cash proceeds) (i), ) are less than $200,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) and (iii) when aggregated with the proceeds of all other Asset Sales made within the definition of “Asset Sale”;same Fiscal Year, are less than $1,000,000; provided
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(fe) disposals of leased Permitted Acquisitions, the cash consideration for which constitutes (i) for so long as the Leverage Ratio is greater than or financed automobiles equal to 3.0:1.0, less than $25,000,000 in the ordinary course of businessaggregate in any Fiscal Year and (ii) at any time after the Leverage Ratio has fallen below
3.0:1. 0, less than $40,000,000 in the aggregate in any Fiscal Year; provided, however, that in the Fiscal Year 2005, the cash consideration for Permitted Acquisitions shall be less than $45,000,000;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made in accordance with Section 6.7; and
(g) Asset Sales of equipment in connection with Permitted Sale-Leasebacks, provided that the proceeds of any such Permitted Sale-Leaseback shall be entirely in cash and shall not be less than 100% of the fair market value of the equipment being sold (determined in good faith by the board of advisors of Company (or similar governing body)).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Reprographics CO)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company (i) may be merged with or into Company any Borrower or any Guarantor or any other wholly owned Subsidiary, or (ii) may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company any Borrower or any Guarantor SubsidiaryGuarantor, (iii) may be converted from one form of business organization to another form of business organization or (iv) that is a Foreign Subsidiary may engage with another Foreign Subsidiary in any transaction described in clause (i) or (ii) above; provided, (i) in the case of such a mergermerger (other than in the case of a merger between Immaterial Subsidiaries and/or Foreign Subsidiaries), Company the Borrower or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person; provided further, (ii) Company gives that in the Agents ten days’ prior written notice case of any such action, transaction pursuant to clause (iii) no Default or Event above where the surviving corporation is a Credit Party organized in a state other than Delaware such surviving Person shall deliver a certificate of Default shall have occurred or be continuing either before or after giving effect theretoan Authorized Officer and, and (iv) if requested by the Collateral Administrative Agent’s Liens in , a legal opinion affirming the Collateral shall not be affected in any manner thereby; provided, further, for purposes validity of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.its Guarantee supporting the Obligations;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, the proceeds of which (1) except with respect to valued at the licensing of property principal amount thereof in the ordinary course case of businessnon-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $20,000,000; provided (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 management of directors of Company the Borrower) and (or similar governing body)), (2y) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)Cash;
(ed) disposals of obsolete, worn out or surplus property;
, restrictive or custom items, defective goods or goods returned or rejected by customers (f) disposals of leased except as may be repackaged or financed automobiles otherwise prepared for sale), in each case, in the ordinary course of business;
(ge) Permitted Acquisitions, the Acquisition Consideration for which constitutes less than (x) prior to the Initial Maturity Date, $50,000,000 in the aggregate and (y) thereafter, $100,000,000 in the aggregate in any Fiscal Year; provided (x) following the Initial Maturity Date, not more than $25,000,000 of Acquisition Consideration in the aggregate in any Fiscal Year shall be permitted to be used to acquire Persons that, once acquired, would constitute non-Credit Parties and (y) the Credit Parties shall have complied with the requirements of Section 5.11 within 30 days after the consummation of such Permitted Acquisition;
(hf) Reinvestments permitted under Section 2.14(a) or (b); and
(i) other Investments made in accordance with Section 6.7.6.6; and
Appears in 1 contract
Samples: Senior Subordinated Bridge Loan Agreement (Source Interlink Companies Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a mergerany of the foregoing transactions involving Company or any Guarantor Subsidiary, Company or (if Company is not involved) such Guarantor Subsidiary, as applicable Subsidiary shall be the continuing or surviving PersonPerson or the transferee of the business, property or assets, and (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral case of any of the foregoing transactions involving a Permitted Joint Venture and any other Credit Party, such other Credit Party shall not be affected in any manner therebythe continuing or surviving Person or the transferee of the business, property or assets; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.Credit and Guaranty Agreement
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, the proceeds of which when aggregated with the proceeds of all other Asset Sales made during such Fiscal Quarter and the three most recently ended Fiscal Quarters are less than $5,000,000; provided (1i) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2ii) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3iii) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.13(a);
(d) disposals of obsolete or worn out property;
(e) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b)Dallas Dispositions; and
(if) Investments made in accordance with Section 6.7.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Del Frisco's Restaurant Group, LLC)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shallCompany shall not, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of businessbusiness and other acquisitions of property for use in the ordinary course of Borrower's and its Subsidiaries' businesses that do not constitute the acquisition of any Person or any division or line of business or other business unit of any Person or all or substantially all of any Person's assets) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, ; (ii) any Foreign Subsidiary of Company gives the Agents ten days’ prior written notice may be merged with or into any other Foreign Subsidiary of such actionCompany, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Foreign Subsidiary of Company; and (iii) no Default or Event of Default shall have occurred or any Subsidiary with a net book value not greater than $100,000 may be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.dissolved;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses the case of other non-cash proceeds)
(i)) when aggregated with the proceeds of all other Asset Sales made pursuant to this clause (c) within the same Fiscal Year, are less than $4.0 million, and (ii) and (iii) when aggregated with the proceeds of all other Asset Sales made from the definition Closing Date to the date of “Asset Sale”;
(d) Asset Salesdetermination, are less than $15.0 million; provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 principal financial officer of Company with respect to any Asset Sale for aggregate consideration of less than $5.0 million and by the board of directors of Company (or similar governing body) with respect to any Asset Sale for aggregate consideration greater than $5.0 million)), (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Cash Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(fe) disposals of leased or financed automobiles in Permitted Acquisitions to the ordinary course of businessextent permitted pursuant to Section 6.7(l);
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made in accordance with Section 6.7;
(g) the Transactions consummated on the Closing Date;
(h) the sale or discount of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(i) licenses or sublicenses of intellectual property and general intangibles and licenses, leases or subleases of other property, in each case, in the ordinary course of business and that do not materially interfere with the business of Company and its Subsidiaries;
(j) Company or any of its Subsidiaries may liquidate Cash Equivalents;
(k) any condemnation or eminent domain proceedings affecting any real property (so long as any Net Cash Proceeds thereof are applied as required by the Credit Documents);
(l) any merger or consolidation effected solely for the purpose of reincorporation into another jurisdiction (to the extent done in compliance with the applicable provisions of the Pledge and Security Agreement);
(m) any disposal or transfer of assets described on Schedule 6.9; and
(n) any sale and lease back transaction permitted pursuant to Section 6.11.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Medical Device Manufacturing, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) Subject to compliance with Section 5.14, any wholly owned Subsidiary of Company that may be merged with or into Company a Borrower or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leasedleased (including leases of equipment), transferred or otherwise disposed of, in one transaction or a series of transactions, to Company a Borrower or any Guarantor SubsidiaryGuarantor; provided, (i) provided that in the case of such a merger, Company (i) a Borrower or such Guarantor SubsidiaryGuarantor, as applicable applicable, shall be the continuing or surviving Person, (ii) Company gives any Liens in favor of any Person other than Lenders that encumber the Agents ten days’ prior written notice assets of the Person so merged shall not attach to any assets of the surviving Person, other than those assets being acquired to the extent such actionLien is a Permitted Lien, (iii) no Default or Event any Liens in favor of Default Lenders that encumber the assets of the surviving Person shall have occurred or be continuing either before or after giving effect thereto, attach to any assets of the person so merged in a first and senior priority position on terms acceptable to the Required Lenders pursuant to a written intercreditor agreement and (iv) the Collateral Agent’s Liens no increase in the Collateral Tax obligations of Company or the holders of Capital Stock of Company shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.result therefrom,;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business disposals of the Company obsolete or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionworn out property;
(c) sales the sale or other dispositions described in clauses (i), (ii) and (iii) lease of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property equipment and/or inventory in the ordinary course of business;
(d) pursuant to Permitted Lease Receivables Finance Programs, Permitted Equipment/Lease Sale Programs or a Qualified Collection/Processing Arrangement;
(e) Asset Sales (other than those provided in this Section 6.09), the proceeds of which are less than $2,500,000 in the aggregate in any Fiscal Year; provided that (A) 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 Board of directors Directors of Company or the applicable Subsidiary (or similar governing body)) and evidenced by customary resolutions to that effect (a copy of which resolutions shall be promptly delivered to the Agent), (2B) no less than 80100% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3C) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.9(a);
(e) disposals of obsolete, worn out or surplus property;
(f) disposals Permitted Acquisitions in an aggregate amount not to exceed (i) $25,000,000 for any one transaction or series of leased related transactions or financed automobiles (ii) $50,000,000 during the term of this Agreement, in each case, so long as the Permitted Acquisition requirements are satisfied in the ordinary course sole discretion of business;the Required Lenders or otherwise waived by the Required Lenders in their sole discretion pursuant to Section 10.5; and
(g) other Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(i) Investments made in accordance with Section 6.7Investments.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into Company Borrower or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any timeAsset Sales; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body))thereof, (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)) and (4) such Asset Sales shall not constitute a sale of all or substantially all of the Collateral;
(ec) disposals of obsolete, worn out or surplus propertyproperty and other sales of assets which do not constitute "Asset Sales";
(f) disposals of leased or financed automobiles in the ordinary course of business;
(gd) Permitted Acquisitions;, the non-equity consideration for which constitutes (i) less than $10,000,000 in the aggregate in any Fiscal Year; and (ii) less than $40,000,000 in the aggregate from the Closing Date to the date of determination; provided, that the non-equity consideration of any Permitted Acquisition may exceed the limitations set forth in clauses (i) and (ii) of this Section 6.9(d), if Borrower delivers a revised Compliance Certificate demonstrating that the Leverage Ratio calculated on a pro forma basis in accordance with Section 6.8(d) after giving effect to such Permitted Acquisition (as if such Permitted Acquisition had occurred in the beginning of the period set forth in such Compliance Certificate) is equal to or less than (i) 4.00:1.00 for Fiscal Year 2005, (ii) 3.25:1.00 for Fiscal Year 2006, (iii) 2.75:1.00 for Fiscal Year 2007 and (iv)
(h) Reinvestments permitted under Section 2.14(a) or (b)2.25:1. 00 for Fiscal Year 2008; and
(ie) Investments made in accordance with Section 6.7.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company or such Guarantor SubsidiaryGuarantor, as applicable applicable, shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses Asset Sales; provided
(i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (in the case of any Asset Sale for consideration with a value in excess of $20.0 million, as determined in good faith by the board of directors of Company (or similar governing body)), (2ii) no less than 8075.0% thereof shall be paid in the form of any one or a combination of the following: (A) cash, Cash Equivalents or Additional Assets, (B) the assumption by the purchaser of liabilities of Company or any Subsidiary in the amounts as shown on the date latest consolidated balance sheet on which such liability appears (other than contingent liabilities and liabilities that are by their terms subordinated to the Obligations) as a result of which Company and its Subsidiaries are no longer obligated with respect to such liabilities, (C) securities, notes or other obligations received by Company or such Subsidiary to the extent such securities, notes or other obligations are converted by Company or such Subsidiary into cash, Cash Equivalents or Additional Assets within 90 days of such sale or within six months thereafterAsset Sale, excluding any sales of Axid® OS and (3D) Indebtedness of a Subsidiary that is no longer a Subsidiary as a result of such Asset Sale if Company and its Subsidiaries are immediately released from all guaranties, if any, of payment or other obligations with respect to such Indebtedness and such Indebtedness is no longer the liability of Company or any of its Subsidiaries, and (iii) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.11(a);
(d) any Foreign Subsidiary of Company may be merged with or into any other Foreign Subsidiary or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to (i) in the case of a Foreign Subsidiary that is a First Tier Foreign Subsidiary, to any other First Tier Foreign Subsidiary, Company or any Guarantor, and (ii) in the case of any other Foreign Subsidiary, to any other Foreign Subsidiary, Company or Guarantor; provided, in the case of such a merger, a First Tier Foreign Subsidiary shall be the continuing or surviving Person;
(e) disposals Permitted Acquisitions and Permitted Program Acquisitions; provided that, (i) until the Convertibles Trigger Event has occurred, the aggregate consideration for Permitted Program Acquisition Spending and Permitted Acquisitions in any Fiscal Year shall not exceed $125.0 million (excluding the acquisition permitted under Section 6.9(f) below and, in the case of obsoletePermitted Acquisitions, worn out excluding consideration constituting Acquisition Equity); provided that (A) up to $50.0 million of such amount that is permitted under the immediately preceding clause (e)
(i) but unused during any such Fiscal Year may be carried forward into the immediately following Fiscal Year, and (B) in addition to the foregoing, Company may also make Consolidated Capital Expenditures permitted under Section 6.8(c) of this Agreement for Permitted Program Acquisition Spending and Permitted Acquisitions; and (ii) from and after the Convertibles Trigger Event, Permitted Program Acquisition Spending and Permitted Acquisitions may be made so long as, after giving pro forma effect for any proposed Permitted Program Acquisition Spending or surplus propertyPermitted Acquisition, (A) Unencumbered Cash and Available Credit (for these purposes Company may include as cash up to $100.0 million of accounts receivable to be acquired in any such transaction and actually converted into cash within 30 days of the acquisition) shall not be less than $500.0 million, and (B) the ratio of Consolidated Net Indebtedness to Consolidated Adjusted EBITDA shall be less than or equal to 4.00:1.00;
(f) disposals the Elscint Ltd. acquisition described in Schedule 6.9 of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b)Disclosure Letter; and
(ig) Investments made in accordance with Section 6.7.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales (other than [***] or any sale of any Capital Stock of any Subsidiary of Company), the proceeds of which are less than $5,000,000 when aggregated with the proceeds of all other dispositions described in clauses Asset Sales made within the same Fiscal Year; provided (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Board of directors Directors of Company (or similar governing body)), (2ii) no less than 80100% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3iii) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)2.12;
(d) disposals of obsolete or worn out property;
(e) disposals at any time after the consummation of obsolete[***], worn out Permitted Acquisitions, the aggregate consideration (including any deferred or surplus propertycontingent consideration) for which constitutes (i) less than $5,000,000 in any Fiscal Year, and (ii) less than $10,000,000 in the aggregate from the Closing Date to the date of determination;
(f) disposals of leased or financed automobiles in the ordinary course of businessPermitted Investments;
(g) Permitted Acquisitions;Liens; and
(h) Reinvestments permitted under Section 2.14(a) or (b)[***]; and
provided (i) Investments made in accordance with the Board of Directors of Company (including all independent members of the Board of Directors of Company) shall have approved such transaction, (ii) [***], (iii) the Net Proceeds thereof shall be applied as required by Section 6.72.12(a), and (iv) that both immediately before and immediately after giving effect to such transaction or transactions, no Event of Default has occurred and is continuing or would result therefrom.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit permit, any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of real property, inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafter, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof of which shall be applied as required by Section 2.14(a2.12(a);
(ed) disposals of obsolete, worn out or surplus property;
(fe) disposals the Concentric Transactions and Permitted Acquisitions, provided that if Company is not the surviving corporation as a result of leased or financed automobiles in the ordinary course Concentric Transactions, the surviving corporation shall expressly assume, pursuant to documentation satisfactory to Joint Lead Arrangers, all of businessCompany's Obligations hereunder and under the other Credit Documents, and shall take such further actions as Administrative Agent may reasonably request to ensure that the Obligations are guarantied and are secured as provided in, and subject to the limitations contained in, the Credit Documents;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made in accordance with Section 6.76.5;
(g) entering into "Irrevocable Right of Use" agreements and capacity agreements with other Persons by, and leases or subleases to or from other Persons of assets by, Company or any of its Subsidiaries in the ordinary course of business; and
(h) licenses to or from other Persons of Intellectual Property by Company or any Subsidiary thereof in the ordinary course of business.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Nextlink Communications Inc /De/)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any timedo not constitute Asset Sales; provided, that (x) all assets no Credit Party shall sell, lease or otherwise dispose of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionNon-Disposable Collateral;
(c) sales or other dispositions described in clauses Asset Sales, the proceeds of which (i)) are less than One Hundred Fifty Thousand Dollars ($150,000) with respect to any single Asset Sale or series of related Asset Sales, and (ii) and when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than Two Hundred Fifty Thousand Dollars (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, $250,000); provided (1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body)), (2) no less than 80% one hundred percent (100.0%) thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.13(a);
(ed) disposals of obsolete, obsolete or worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(g) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(ie) Investments made in accordance with Section 6.7.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Speed Commerce, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party Neither Company nor any Guarantor Subsidiary shall, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Consolidated Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Restricted Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person. In addition, (ii) any Restricted Subsidiary of Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall that is not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor may be merged with or into any other Restricted Subsidiary of Company that is not a Guarantor which is its direct parent or Subsidiary., or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Restricted Subsidiary of Company that is not a Guarantor and which is its direct parent or Subsidiary;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution;
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “assets that do not constitute Asset Sale”;Sales; and
(dc) Asset Sales, the Net Asset Sale Proceeds of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed the greater of (x) $100,000,000 and (y) 3.0% of Total Tangible Assets; provided,
(1) except with respect to the licensing of property in the ordinary course of business, 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 Company (or similar governing body))thereof, (2) no less than 8075% thereof shall be paid in Cash on the date of such sale or within six months thereafterand Cash Equivalents, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)) to the extent required thereby;
(d) the sale or other dispositions of those assets identified on Schedule 6.8-A;
(e) disposals Asset Sales of obsoletenon-core assets (as determined by Company in good faith) acquired in any Permitted Acquisition by Company and any of its Restricted Subsidiaries; provided that (i) such Asset Sales are commenced within eighteen (18) months of such Permitted Acquisition, worn out or surplus property(ii) not less than 75% of the consideration received by Company and its Restricted Subsidiaries in connection with any such Asset Sales is in the form of Cash and Cash Equivalents; (iii) the consideration received by Company and its Restricted Subsidiaries in connection with any such Asset Sales is equal to the fair market value of such assets (as determined by Company in good faith); and (iv) the Net Asset Sale Proceeds from such Asset Sales shall be applied as required by Section 2.14(a) to the extent required thereby;
(f) disposals of leased or financed automobiles in the ordinary course of businessExcluded Asset Sales;
(g) Permitted AcquisitionsAcquisitions by Company or by any Guarantor Subsidiary of a Person which becomes a Guarantor Subsidiary; (ii) Permitted Acquisitions by Company or by any Restricted Subsidiary of a Person which does not become a Guarantor Subsidiary to the extent the consideration does not exceed the greater of (x) $500,000,000 and (y) 15.0% of Total Tangible Assets in the aggregate plus the Available Amount at such time and (iii) acquisitions by Company of assets contributed to it by Holding as equity capital contributions;
(h) Reinvestments acquisitions of real property that is contiguous to real property owned by Company or its Restricted Subsidiaries at such time; so long as such acquisition is either (i) by Company or any Guarantor Subsidiary, or (ii) if not within clause (i) of this provision, is either (A) financed with the proceeds of Limited Recourse Debt and/or the proceeds of an Investment pursuant to Section 6.6(j) or (B) consummated for consideration in an aggregate amount (together with any other acquisitions made in reliance on this Section 6.8(h)(ii)(B) following the Closing Date) not to exceed $90,000,000;
(i) the transactions contemplated by the Foreign Subsidiary Restructuring;
(j) either Company or any Subsidiary may merge with any other Person in order to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 5.14;
(i) any Restricted Subsidiary that is not a Credit Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Credit Party and (ii) any Restricted Subsidiary (other than Company) may liquidate or dissolve, or any of Company or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if Company determines in good faith that such action is in the best interest of Company and its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any dissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Guarantor unless such disposition of assets is permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(l) the unwinding of any Hedge Agreement;
(m) dispositions of Investments in joint ventures that are permitted under Section 2.14(a6.6 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;
(n) dispositions resulting from any casualty or (b)other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset; and
(io) Investments made in accordance with permitted under Section 6.76.6 and Restricted Junior Payments permitted under Section 6.4.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Covanta Holding Corp)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) any wholly owned Subsidiary of Company Holdings may be merged with or into Company the Borrower or any Guarantor Subsidiary, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or any Guarantor Subsidiary; provided, (i) in the case of such a merger, Company the Borrower or such Guarantor Subsidiary, as applicable applicable, shall be the continuing or surviving Person, (ii) Company gives the Agents ten days’ prior written notice of such action, (iii) no Default or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and (iv) the Collateral Agent’s Liens in the Collateral shall not be affected in any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.;
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales (excluding Asset Sales under Section 6.08(g)), the proceeds of which (valued at the principal amount thereof in the case of non Cash proceeds consisting of notes or other dispositions described in clauses (i), (ii) debt Securities and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1) except with respect to the licensing of property valued at fair market value in the ordinary course case of business, other non Cash proceeds) do not exceed $25,000,000 in any Fiscal Year; provided that (A) 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 Company the Borrower (or similar governing body)), (2B) no less than 80% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3C) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.12(a);
(ed) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(ge) Permitted Acquisitions;
(h) Reinvestments permitted under Section 2.14(a) or (b); and
(if) Investments made in accordance with Section 6.76.06; and
(g) Asset Sales of equipment in connection with Permitted Sale-Leasebacks, provided that the proceeds of any such Permitted Sale-Leaseback shall be entirely in cash and shall not be less than 100% of the fair market value of the equipment being sold (determined in good faith by the board of advisors of the Borrower (or similar governing body)).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Reprographics CO)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease (as lessor or sublessor)license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any wholly owned Subsidiary of Company the Borrower may be merged with or into Company the Borrower or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company the Borrower or such Guarantor SubsidiaryGuarantor, as applicable shall be the continuing or surviving Person, ; (ii) Company gives the Agents ten days’ prior written notice any Massachusetts securities corporation may be merged with or into any other Massachusetts securities corporation, or be liquidated, wound up or dissolved, or all or any part of such actionits business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other Massachusetts securities corporation; and (iii) no Default any Foreign Subsidiary may be merged with or Event of Default shall have occurred or be continuing either before or after giving effect thereto, and into any other Foreign Subsidiary (ivprovided that (x) the Collateral Agent’s Liens in the Collateral surviving entity shall not be affected an Excluded Foreign Subsidiary and (y) the surviving entity shall be in compliance with Sections 5.10(b) and 5.10(c), as applicable, as of the date such merger is consummated, without giving effect to any manner grace periods contained therein or referenced thereby; provided), furtheror be liquidated, for purposes wound up or dissolved, or all or any part of this Section 6.9its business, RP Sub No. 1 shall not property or assets may be considered conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a Guarantor series of transactions, to any other Foreign Subsidiary (other than an Excluded Foreign Subsidiary.);
(b) any Subsidiary (sales or other than the Company) (i) dispositions of assets that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is do not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolutionconstitute Asset Sales;
(c) sales Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other dispositions described debt Securities and valued at fair market value in clauses the case of other non-Cash proceeds) (i), ) are less than $25,000,000 with respect to any single Asset Sale or series of related Asset Sales during any Fiscal Year and (ii) and (iii) when aggregated with the proceeds of all other Asset Sales made within the definition of “Asset Sale”;
(d) Asset Salessame Fiscal Year, provided, are less than $50,000,000; provided (1) except with respect to the licensing of property in the ordinary course of business, 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 Company the Borrower (or similar governing body)), (2) no less than 8070% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(ed) disposals of obsolete, worn out or surplus property;
(f) disposals of leased or financed automobiles in the ordinary course of business;
(ge) Permitted Acquisitions;
(hf) Reinvestments Investments made in accordance with Sections 6.4, 6.6 and 6.10;
(g) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under Section 6.8; provided that (i) at the time of such Disposition, no Default or Event of Default shall have occurred and be continuing or shall result from such Disposition, (ii) the Borrower will be in compliance, on a pro forma basis after giving effect to such Disposition, with the financial covenants set forth in Section 6.7, (iii) for any four consecutive Fiscal Quarter periods, the aggregate of all property Disposed of in reliance on this clause (g) shall not constitute assets generating more than $10,000,000 of Consolidated Adjusted EBITDA for such period, as evidenced by a certificate of an Authorized Officer in form satisfactory to the Administrative Agent delivered concurrently with each such disposition, and (iv) the net proceeds thereof shall be calculated in the same manner as Net Asset Sale Proceeds and shall be applied to prepayment of the Obligations in accordance with Section 2.14(a), without regard to whether such disposition is an Asset Sale and provided that such proceeds shall not be reinvested in the business of the Borrower and its Subsidiaries;
(A) the abandonment of patents, trademarks or other Intellectual Property that are, in the reasonable judgment of the Borrower, either no longer economically practicable to maintain or no longer useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole, (B) non-exclusive licensing of Intellectual Property (1) in the ordinary course of business consistent with past practice, that does not, in any case, interfere in any respect with the ordinary conduct of or materially detract from the value of the business of the Borrower and the Subsidiaries or (b2) listed separately (or as part of a transaction listed) on Schedule 1.1A, (C) exclusive outbound licenses of patents, copyrights, trademarks and other Intellectual Property rights granted by the Borrower or any of its Subsidiaries that is listed (separately or as part of a transaction listed) on Schedule 1.1A or that otherwise does not constitute an Asset Sale, (D) non-exclusive outbound licenses for aggregate consideration of less than $10,000,000 with respect to any transaction or series of related transactions and less than $20,000,000 in the aggregate during any Fiscal Year and (E) the exclusive and/or non-exclusive outbound license of patents, copyrights, trademarks and other Intellectual Property rights granted by the Borrower or any of its Subsidiaries otherwise permitted under this Section 6.8 (including without limitation, as part of a Permitted Acquisition); and
(i) Investments made with the consent of the Administrative Agent, the transfer or licensing of any non-core technology, or the licensing of any technology for an application not material to the business or operations of the Borrower and its Subsidiaries, to any Person; provided that at the time of such transfer, no Default or Event of Default shall have occurred and be continuing or shall result from such transfer or such licensing and after giving effect to such transfer or such licensing, the representations and warranties contained in accordance with Section 6.74.13 shall be true and complete in all material respects as of the date of such transfer or such licensing.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sublease sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures capital expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) Subject to compliance with Sections 5.14 and 5.17, any wholly owned Subsidiary of Company may be merged with or into Company a Borrower or any Guarantor SubsidiaryGuarantor, or may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leasedleased (including leases of vehicles and other equipment), transferred or otherwise disposed of, in one transaction or a series of transactions, to Company a Borrower or any Guarantor SubsidiaryGuarantor; provided, (i) in the case of such a merger, Company (i) a Borrower or such Guarantor SubsidiaryGuarantor, as applicable applicable, shall be the continuing or surviving Person, Person (ii) Company gives any Liens in favor of any Person other than Lenders that encumber the Agents ten days’ prior written notice assets of such actionthe Person so merged shall not attach to any assets of the surviving Person, (iii) any Liens in favor of Lenders that encumber the assets of the surviving Person shall attach to any assets of the person so merged in a first and senior priority position on terms acceptable to the Required Lenders pursuant to a written intercreditor agreement, (iv) no Default increase in the Tax obligations of Company or Event the holders of Default Capital Stock of Company shall have occurred or be continuing either before or after giving effect theretoresult therefrom, and (ivv) the Collateral Agent’s Liens in the Collateral shall not no event may a Loan Party that is party to an A/R Credit Agreement be affected in dissolved into, merge with, otherwise combine with or transfer all or substantially all of its assets to any manner thereby; provided, further, for purposes of this Section 6.9, RP Sub No. 1 shall not be considered a Guarantor Subsidiary.other Loan Party;
(b) any Subsidiary (other than the Company) (i) that is no longer useful in the business of the Company or (ii) of which liquidation or dissolution is in the best interest of the Company, each as determined in good faith and reasonable discretion by the Company, may dissolve, liquidate or wind up its affairs at any time; provided, that (x) all assets of such Subsidiary are transferred to another Credit Party, (y) such dissolution is not materially disadvantageous to the Lenders, and (z) all Liens on assets of such Subsidiary are maintained for the benefit of Collateral Agent subsequent to any dissolution[Reserved];
(c) sales or other dispositions described in clauses (i), (ii) and (iii) of the definition of “Asset Sale”;
(d) Asset Sales, provided, (1a) except with respect to the licensing proceeds of property which are less than $10,000,000 in the ordinary course of business, aggregate in any Fiscal Year; provided that (A) 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 Board of directors Directors of Company or the applicable Subsidiary (or similar governing body) and evidenced by customary resolutions to that effect (a copy of which resolutions shall be promptly delivered to the Agent)), (2B) no less than 80100% thereof shall be paid in Cash on the date of such sale or within six months thereafterCash, excluding any sales of Axid® OS and (3C) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a)2.13(a) or (b) consisting of the factoring of United States Postal Service accounts receivable by Xxxxxx Transport, Inc. and/or Courtlandt & Xxxxx Enterprises, L.L.C. pursuant to an A/R Credit Agreement with respect to which it is agreed that Section 9.5(c) shall apply except with respect to trucks, tractors, trailers, or other vehicles;
(d) Performance of Indebtedness and other obligations of any type by Company and/or any of its Subsidiaries at any time arising pursuant to and in respect of the Warrant Agreement;
(e) disposals of obsolete, obsolete or worn out or surplus property;
(f) disposals Permitted Acquisitions, provided that at least thirty five percent (35%) of leased the total consideration to be paid by Company in respect of any Permitted Acquisition shall be funded by the Company from the proceeds of a sale of Capital Stock of the Company or financed automobiles in from retained Consolidated Net Income of the ordinary course of businessCompany;
(g) Other Permitted Acquisitions;Investments, provided that at least thirty five percent (35%) of the total consideration to be paid by Company in respect of any business acquisition Investment shall be funded by the Company from the proceeds of a sale of Capital Stock of the Company or from retained Consolidated Net Income of the Company; and
(h) Reinvestments permitted under Section 2.14(a) or (b); and
CNG Asset Sales, provided that upon the consummation of each CNG Asset Sale, the Loan Parties shall deliver to Agents, to be held in either (i) Investments made a segregated account established in accordance with Section 6.7Collateral Agent’s name or (ii) a blocked account in Borrower’s name that is subject to a Control Agreement, the Net Proceeds from the consummation of each CNG Asset Sale (such deposited amount the “Held CNG Asset Sale Proceeds”).
Appears in 1 contract
Samples: Financing Agreement (EVO Transportation & Energy Services, Inc.)
