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 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, 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 Subsidiary of Borrower may be merged with or into Borrower or any 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 Borrower or any Guarantor Subsidiary; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales;
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Aeroflex Inc), Credit and Guaranty Agreement (Aeroflex 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 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, or all or substantially all of the 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 Subsidiary of Borrower may be (i) merged or amalgamated with or merged into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or 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, or a Person that continues as an amalgamated corporation, shall be a Guarantor; provided further that, in the case of this clause (B), solely for the purpose of internal corporate tax restructuring, it is understood that any Guarantor may merge or amalgamate with a non-Guarantor Subsidiary of Holdings which is not so long as (x) such non-Guarantor Subsidiary merges or amalgamates with the Borrower or a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiarysubstantially simultaneous with, or be no longer than one Business Day after the internal merger or amalgamation involving a Guarantor, with the surviving person, or the Person that continues as an amalgamated corporation from such subsequent merger or amalgamation being the Borrower or a Guarantor, and (y) the Borrower shall certify to the Administrative Agent on the date of any such merger or amalgamation that such merger or amalgamation shall comply with this Section 6.8(a), or (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) 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 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 4.00% of Consolidated Total Assets (with 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); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) 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 6.6(d)(ii) in Persons other than Credit Parties (without duplication of any such Investments then outstanding under Section 6.6(d)(ii)), 4.0% of Consolidated Total Assets per Fiscal Year and (y) 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 6.6, 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 or the Bausch & Lomb 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 2 contracts
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals 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, arrangement, reorganization or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or 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, or all or substantially all of the 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 Subsidiary of Borrower may be (i) merged or amalgamated with or merged into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or 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, or a Person that continues as an amalgamated corporation, shall be a Guarantor; provided further that, in the case of this clause (B), solely for the purpose of internal corporate tax restructuring, it is understood that any Guarantor may merge or amalgamate with a non-Guarantor Subsidiary of Holdings which is not so long as (x) such non-Guarantor Subsidiary merges or amalgamates with the Borrower or a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiarysubstantially simultaneous with, or be no longer than one Business Day after the internal merger or amalgamation involving a Guarantor, with the surviving person, or the Person that continues as an amalgamated corporation from such subsequent merger or amalgamation being the Borrower or a Guarantor, and (y) the Borrower shall certify to the Administrative Agent on the date of any such merger or amalgamation that such merger or amalgamation shall comply with this Section 6.8(a), or (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) 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 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 4.00% of Consolidated Total Assets (with 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); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) 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 6.6(d)(ii) in Persons other than Credit Parties (without duplication of any such Investments then outstanding under Section 6.6(d)(ii)), 4.0% of Consolidated Total Assets per Fiscal Year and (y) 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 6.6, other than pursuant to clause (g) thereof (which Investment may take the form of (x) 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 or (y) the acquisition by purchase or otherwise of the business or fixed assets of any Subsidiary or any division or line of business or other business unit of any Subsidiary (including any such acquisition that would not constitute an Investment, so long as such acquisition (1) would be permitted by Section 6.6(d) if such acquisition were of Securities or Equity Interests of such Subsidiary or a division or line of business or other business unit of such Subsidiary and/or (2) is between and/or among Credit Parties));
(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 or the Bausch & Lomb 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 2 contracts
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals 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 licensesub-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, leased or licensed, 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 Subsidiary of Borrower Company may be merged with or into Borrower Company or any 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 Borrower Company or any Guarantor Subsidiary; provided, in the case of such a merger, Borrower Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person Person; and any Subsidiary of Holdings Company which is not a Guarantor Subsidiary may be merged with or into any wholly-owned other Subsidiary which is not 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) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales; provided, that the fair market value of assets sold, leased, licensed, or otherwise disposed of to Subsidiaries of Company that are not Guarantors, together with any Investments permitted under Section 6.7(b)(iii), shall not exceed $7,500,000 in any Fiscal Year;
(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) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $2,000,000; 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 Company), (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 2.14(a);
(d) Permitted Acquisitions, the consideration for which constitutes less than $50,000,000 in the aggregate from the Closing Date to the date of determination;
(e) Investments made in accordance with Section 6.7;
(f) the lapse of registered intellectual property of Company or any of its Subsidiaries that is no longer useful and the lapse of which could not reasonably be expected to result in a Material Adverse Effect;
(g) 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; and
(h) the termination, surrender or sublease of a real estate lease of Company or any of its Subsidiaries in the ordinary course of business.
Appears in 2 contracts
Samples: Second Amendment (DynCorp International Inc), Credit and Guaranty Agreement (Services International 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 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 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, or all or substantially all of the 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 Subsidiary of Borrower may be merged (i) merged, amalgamated or consolidated with or merged, amalgamated or consolidated into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a merger, amalgamation or consolidation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person or a Person that continues as a merged, amalgamated or consolidated corporation and (B) in the case of such a merger, amalgamation or consolidation involving any other Guarantor (and not involving Borrower), the surviving Person, or a Person that continues as a merged, amalgamated or consolidated corporation, shall be a Guarantor; provided further that, in the case of this clause (B), solely for the purpose of internal corporate tax restructuring, it is understood that any Guarantor may merge, amalgamate or consolidate with a non-Guarantor Subsidiary of Holdings which is not so long as (x) such non-Guarantor Subsidiary merges, amalgamates or consolidates with the Borrower or a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiarysubstantially simultaneous with, or be no longer than one Business Day after the internal merger, amalgamation or consolidation involving a Guarantor, with the surviving person, or the Person that continues as a merged, amalgamated or consolidated corporation from such subsequent merger, amalgamation or consolidation being the Borrower or a Guarantor, and (y) the Borrower shall certify to the Administrative Agent on the date of any such merger, amalgamation or consolidation that such merger, amalgamation or consolidation shall comply with this Section 6.8(a), or (ii) other than with respect to Borrower, reorganized, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such reorganization, liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) Asset Sales (which Asset Sale may take the form of a merger, amalgamation or similar transaction); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) 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 by Persons that are not Credit Parties 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 6.6(d)(ii) in Persons other than Credit Parties (without duplication of any such Investments then outstanding under Section 6.6(d)(ii)), 4.0% of Consolidated Total Assets per Fiscal Year and (y) 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 6.6, other than pursuant to clause (g) thereof (which Investment may take the form of (x) 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 or (y) the acquisition by purchase or otherwise of the business or fixed assets of any Subsidiary or any division or line of business or other business unit of any Subsidiary (including any such acquisition that would not constitute an Investment, so long as such acquisition (1) would be permitted by Section 6.6(d) if such acquisition were of Securities or Equity Interests of such Subsidiary or a division or line of business or other business unit of such Subsidiary and/or (2) is between and/or among Credit Parties));
(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 or the Bausch & Lomb 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 2 contracts
Samples: 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-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchangesublease (as lessor or sublessor), 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, or all or substantially all of the property or fixed assets of, 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 become a general partner in any partnership, except:
(a) any Subsidiary of the Lead Borrower may be merged or consolidated with or into Borrower the Borrowers or any Guarantor Subsidiaryother Subsidiary of the Lead Borrower, 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 Borrower the Borrowers or any Guarantor Subsidiaryto a Guarantor; providedprovided that, in the case of such any merger or consolidation involving a merger, Borrower or such Guarantor Wholly-Owned Subsidiary, as applicable the Person formed by such merger or consolidation shall be the continuing or surviving Person and any a Wholly-Owned Subsidiary of Holdings the Borrowers; provided, further that, in the case of any such merger or consolidation to which is not a Guarantor Subsidiary may is a party, the Person formed by such merger or consolidation shall be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryGuarantor;
(b) sales, leases, licenses sales or other dispositions Dispositions of assets that do not constitute Asset Sales;
(c) (i) Asset Sales pending as of the Closing Date and described on Schedule 7.4 and (ii) other Asset Sales not permitted by any other clause of this Section 7.4 made after the Closing Date, 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 pursuant to this clause (ii) after the Closing Date and prior to the date of determination, are less than $34,500,000; provided, in the case of Asset Sales made pursuant to this clause (ii), (A) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (if the value is greater than $5,000,000, as determined in good faith by the Board of Directors of the Lead Borrower) and (B) no less than 70% of such consideration shall be paid in cash or in Cash Equivalents;
(d) disposals of obsolete, worn out or surplus property;
(i) Permitted Acquisitions, the consideration for which may be in any amount, so long as at the time of such Permitted Acquisition and after giving pro forma effect thereto (including any Indebtedness incurred in connection therewith), (A) the Total Leverage Ratio is less than 2.75 to 1.0 and (B) no Default or Event of Default shall have occurred and be continuing and (ii) Permitted Acquisitions for an aggregate consideration of up to $23,000,000 in any Fiscal Year if, at the time of such Permitted Acquisition and after giving pro forma effect thereto (including any Indebtedness incurred in connection therewith), (A) the Total Leverage Ratio is equal to or greater than 2.75 to 1.0 and (B) no Default or Event of Default shall have occurred and be continuing;
(f) Investments made in accordance with Section 7.7;
(g) (i) Asset Sales by the Borrowers or Guarantors to any of their Subsidiaries that are not Guarantors or to any Person in which the Borrowers or one or more Wholly-Owned Subsidiaries of the Borrowers own or will own upon consummation of the Asset Sale 50% of the Capital Stock of such Person and (ii) Dispositions of no more than 50% of the Capital Stock of a Wholly-Owned Subsidiary that is not a Guarantor to any Person; provided (A) the consideration received for such assets or Dispositions in the case of the foregoing clauses (i) and (ii), as applicable, shall be in an amount at least equal to the fair market value thereof (if the value is greater than $5,000,000, as determined in good faith by the Board of Directors of the Lead Borrower) and (B) the aggregate fair market value of the assets sold or otherwise disposed of pursuant to this Section 7.4(g) from and after November 11, 2013 shall not exceed $11,500,000 during the term of this Agreement;
(h) Asset Sales among the Loan Parties; and
(i) Asset Sales among Subsidiaries of the Borrowers that are not Guarantors.
(j) the sale and leaseback of the Corporate Headquarters in accordance with Section 7.9.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. (a) No Credit Party shall, nor shall it permit any of its Subsidiaries to, (i) enter into any transaction of merger merger, amalgamation or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or (ii) convey, sell, lease or 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 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:
(ai) (A) any Subsidiary Guarantor of Borrower may be merged or amalgamated with or into Borrower or any Subsidiary Guarantor, as the case may be, or be liquidated, wound up or dissolved (other than CTPL or SPLNG), 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 Borrower or any Subsidiary Guarantor; provided, in the case of such a merger, Borrower, or such Subsidiary Guarantor, as applicable, shall be the continuing or surviving Person and provided further that no such merger or amalgamation shall be permitted if any Non-Recourse Indebtedness of the entity merging with or into Borrower or such other Subsidiary Guarantor Subsidiaryshall become recourse to the assets of Borrower or such Subsidiary Guarantor and (B) any Subsidiary (other than SPL) that is not a Subsidiary Guarantor may be merged or amalgamated with or into any other Subsidiary (other than SPL) that is not a Subsidiary Guarantor, as the case may be, 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 Borrower or any Guarantor Subsidiary; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which that is not a Subsidiary Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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(other than SPL);
(bii) sales, leases, licenses sales or other dispositions of assets that do not constitute Asset Sales;
(iii) Asset Sales for an aggregate consideration of less than $30,000,000 per Fiscal Year or $75,000,000 in the aggregate since the Closing Date; provided that (w) 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 Cheniere Energy Partners GP, LLC, acting on behalf of Borrower (or similar governing body)), (x) no less than 75% thereof shall be paid in Cash or Cash Equivalents, (y) the Net Asset Sale Proceeds thereof, if any, shall be applied as required by Section 2.13(a) (Asset Sales) and (z) no Event of Default shall have occurred and be continuing or would result therefrom;
(iv) any Asset Sale of direct Equity Interests in CTPL so long as the Net Asset Sale Proceeds received by the Credit Parties are applied or reinvested in accordance with Section 2.13 (
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Cheniere Energy Partners, L.P.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party Borrower shall, nor shall it permit any of its Subsidiaries to, enter into consummate any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or licensesub-lease (as lessor or sublessor), license or sublicense (as licensor or sublicensor), 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 (each, leased or licenseda “Disposition”), 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 ) 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 Subsidiary of a Borrower may be merged merged, consolidated or amalgamated with or into a Borrower or any Person that is a Guarantor Subsidiaryor will become a Guarantor contemporaneously therewith (including a merger, the purpose of which is to reorganize Borrower into a new jurisdiction in the United States), 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, in all cases to any Borrower or any Guarantor SubsidiaryGuarantor; providedprovided that, (i) in the case of such all instances a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and Person;
(b) any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged merged, consolidated or amalgamated with or into any wholly-owned other Subsidiary which is not (or any Person that will become a Guarantor SubsidiarySubsidiary contemporaneously therewith) and any Subsidiary may convey, sell, lease, transfer or be liquidatedotherwise dispose of, wound up in one transaction or dissolveda series of transactions, 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 another Subsidiary;
(c) Asset Sales; 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 of Borrower (or similar governing body)), and (2) no less than 50% thereof shall be paid in cash or Cash Equivalents;
(d) Dispositions of inventory, obsolete, worn out or surplus equipment and the lapse, abandonment, or other Disposition of immaterial Intellectual Property that is, in the reasonable judgment of Borrower, no longer economically practicable to maintain or no longer used or useful in the ordinary course of Borrowers’ and their Subsidiaries’ business, taken as a whole or otherwise uneconomical to prosecute or maintain;
(e) Permitted Acquisitions;
(f) Liens incurred in accordance with Section 7.2, Investments made in accordance with Section 7.6, and Restricted Payments made in accordance with Section 7.4, in each case, other than by reference to this Section 7.7(f);
(g) (i) non-exclusive licenses or sub-licenses (and other licenses or sub-licenses that may be exclusive in certain respects (such as geography) but which could not reasonably be expected to result in a transfer of title) of property granted by Borrowers or any of their Subsidiaries and not interfering in any respect with the ordinary conduct of the business of Borrowers and their Subsidiaries, taken as a whole and (ii) exclusive licenses on arms-length terms and conditions so long as the license agreement requires (a) the counterparty to such license to assign any Intellectual Property created or owned by such counterparty that is an advancement, development, improvement, modification or other derivative of the Intellectual Property licensed by any Borrower or Subsidiary back to such Borrower or any other Borrower or Subsidiary and (b) salesthe counterparty not to acquire title in or own any of the Intellectual Property licensed by Borrowers or any of their Subsidiaries;
(h) the use or transfer of cash or Cash Equivalents in the ordinary course of business in a manner not otherwise prohibited by this Agreement and conversions of Cash Equivalents into cash or other Cash Equivalents;
(i) the sale, assignment, lease, conveyance, transfer or other Disposition of property by (i) Borrower or any Subsidiary of Borrower to any Borrower, (ii) any Subsidiary of Borrower to any other Subsidiary of Borrower; provided that, with respect to this clause (ii), the fair market value of such assets shall not exceed $5,000,000 in the aggregate during the term of this Agreement;
(j) Dispositions resulting from a casualty event or other insured damage to, or any taking under power of eminent domain or required by condemnation or similar proceeding of any property or asset of a Borrower or any Subsidiary of Borrower; and
(k) Dispositions, discounts or forgiveness of delinquent Accounts in connection with the compromise, settlement or collection thereof (and not as part of any financing transaction), in the ordinary course of business;
(l) any Subsidiary may merge, amalgamate, or consolidate with any other Person in order to effect a Permitted Acquisition; provided, that the continuing or surviving Person shall be a Subsidiary of a Borrower and shall have complied with the requirements of Section 6.8;
(i) the sale or issuance of Capital Stock of any Borrower to any Person; (ii) the sale or issuance of Capital Stock of any Subsidiary of any Borrower to any Borrower provided that no material cash consideration is paid to any such Subsidiary issuing Capital Stock that is not a Borrower; and (iii) the sale or issuance of the Capital Stock of any Subsidiary to any other Subsidiary;
(n) leases, licenses subleases, licenses, or sublicenses of real or personal property in the ordinary course of business;
(o) other Asset Sales and Dispositions, the proceeds of which (valued at the principal amount thereof in the case of non-cash proceeds consisting of notes or other dispositions debt securities and valued at fair market value in the case of assets other non-cash proceeds), when aggregated with the proceeds of all other Asset Sales and/or Dispositions made in reliance on this clause (o), are less than $5,000,000; and
(p) the Facebank AG Sale and the transactions directly related to the Facebank AG Sale. To the extent any Collateral is disposed of as expressly permitted by this Section 7.7 to any Person that do is not constitute Asset Sales;a Borrower or Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Lender shall, and shall be authorized to, take any actions reasonably requested by the Borrower to evidence the termination of any Liens granted on such Collateral.
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 licensesub 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, 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 businessOrdinary Course) 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 Subsidiary of the Lead Borrower may be merged with or into the Lead Borrower or any Guarantor other 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 Borrower or any Guarantor Subsidiary; provided, however, in the case of such a mergermerger involving (v) the Lead Borrower, the Lead Borrower shall be the continuing or such surviving Person, (w) another US Borrower, a US Borrower shall be the continuing or surviving Person, (x) a US Guarantor Subsidiary merging with a non-US Guarantor Subsidiary, as applicable the US Guarantor Subsidiary shall be the continuing or surviving Person, (y) a Canadian Borrower, a Canadian Borrower shall, except to the extent provided in preceding clauses (v), (w) or (x), be the continuing or surviving Person and any Subsidiary of Holdings which is not (z) a Canadian Guarantor Subsidiary may be merged merging or amalgamating with or into any whollya non-owned Subsidiary which is not a Canadian Guarantor Subsidiary, the Canadian Guarantor Subsidiary shall, except as provided in preceding clause (v), (w), (x) or (y), be liquidated, wound up the continuing 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 Subsidiarysurviving Person;
(b) sales, leases, licenses 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 (determined in good faith by the board of directors (or similar governing body) of the respective Person making such Asset Sale) 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 $35,000,000; 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 (or similar governing body) of the respective Person making such Asset Sale), (2) in the case of any Asset Sale generating aggregate Net Asset Sale Proceeds in excess of $1,000,000, no less than 75% thereof shall be paid in Cash (for purposes of this clause (2), each of the following will be deemed to be cash: (A) Cash Equivalents and (B) any Indebtedness, as shown on the Lead Borrower’s most recent consolidated balance sheet, of any Credit Party or Subsidiary (other than Indebtedness that is by its terms subordinated to the Revolving Advances) that is assumed by the transferee of any such assets pursuant to an agreement that releases such Credit Party or Subsidiary from, or indemnifies such Credit Party or Subsidiary against, any liability under, and any Liens on such assets securing, such Indebtedness, (3) no Capital Stock of any Borrower may be sold pursuant to this Section 6.9(c) and (4) no Capital Stock of any Guarantor Subsidiary may be sold pursuant to this Section 6.9(c) unless all of the Capital Stock of such Guarantor Subsidiary is sold in compliance with this Section 6.9(c);
(d) disposals of obsolete, worn out or surplus property, and any assets acquired in connection with the acquisition of another Person in a division or line of business of such Person reasonably determined by the acquirer to be surplus assets;
(e) Permitted Acquisitions, so long as (i) the Common Stock of the Lead Borrower is used as 100% of the consideration in connection therewith or (ii) cash of the Lead Borrower or any of its Subsidiaries is used as all or a portion of the consideration; provided that, in the case of clause (ii), the Applicable Conditions are satisfied;
(f) Investments made in accordance with Section 6.7; and
(g) disposals of real estate which may not be prohibited pursuant to section 1136 of the German Civil Code.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Xerium Technologies Inc)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter 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 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 Consolidated 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 all of beneficial ownership the Equity Interests of, any Person or any a business line or unit or a division or line of business or other business unit of of, any Person, except:
(a) (i) any Subsidiary of Borrower Group Member may be merged or consolidated with or into Borrower or any Guarantor Subsidiaryother Group Member, or 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 Borrower or any Guarantor Subsidiaryother Group Member; provided, that (x) in the case of a merger or consolidation of a Group Member that is not a Loan Party with or into a Borrower or Guarantor, such a merger, Borrower or such Guarantor SubsidiaryGuarantor, as applicable applicable, shall be the continuing or surviving Person, (y) in the case of a merger or consolidation of a Guarantor with or into another Guarantor, a Guarantor shall be the continuing or surviving Person and any Subsidiary (z) in the case of Holdings which is not a merger or consolidation of a Guarantor Subsidiary may be merged with or into a Borrower, such Borrower shall be the continuing or surviving Person, and (ii) any wholly-owned Restricted Subsidiary which is not may merge with any other person in order to effect an Investment permitted pursuant to Section 6.06 so long as the continuing or surviving person shall be a Guarantor Restricted Subsidiary, or which shall be liquidated, wound up or dissolved, or all or any part a Loan Party if the merging Restricted Subsidiary was a Loan Party and which together with each of its businessRestricted Subsidiaries shall have complied with the requirements of Section 5.12, property 5.13 and 5.14, | || as applicable and if such transaction involves the U.S. Borrower, the U.S. Borrower shall be the continuing 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 Subsidiarysurviving Person;
(b) salesany Group Member (other than the U.S. Borrower in the case of a disposition of all of its assets) may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to a Borrower or any other Loan Party, leases, licenses and any Group Member that is not a Loan Party may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to another Group Member that is not a Loan Party;
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(i) 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 pursuant to this clause (d)(i) in any Fiscal Year, are less than (x) 2.0% of Consolidated Total Assets plus (y) an amount equal to any unutilized portion of the amount permitted under subclause (x) for any preceding Fiscal Year; provided that in no event shall the proceeds of any Asset Sale, when aggregated with the proceeds of all other Asset Sales made pursuant to this clause (d)(i) in any Fiscal Year, exceed 5.0% of Consolidated Total Assets; and (ii) the Asset Sale described on Schedule 6.08(d); provided that, in the case of each of clause (i) and (ii), (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 U.S. Borrower (or a duly authorized committee thereof)), (2) except in the case of any Asset Sale to any Restricted Subsidiary, no less than 75.0% thereof shall be paid in cash or Cash Equivalents, and (3) except in the case of any Asset Sale to any Restricted Subsidiary, the Net Cash Proceeds thereof shall be applied as required by Section 2.14(a);
(e) any Group Member may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business (x) which are overdue, or (y) which such Group Member may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with prudent business practice (and not as part of any bulk sale or financing of receivables);
(f) any Group Member may enter into licenses or sublicenses of Software, Trademarks and other Intellectual Property and general intangibles in the ordinary course of business and which do not materially interfere with the business of the Group Members taken as a whole;
(g) (i) any disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing and (ii) any disposition of accounts receivable in connection with receivables factoring arrangements in the ordinary course of business;
(h) dispositions of cash and Cash Equivalents;
(i) Permitted Acquisitions; provided, that in respect of acquisitions of Persons which do not become Loan Parties or of assets which are not acquired by Loan Parties, the | || consideration for such Persons or assets shall not exceed an aggregate amount of 5.0% of Consolidated Total Assets over the term of this Agreement; and
(j) (i) Permitted Sale and Lease-Backs and (ii) Sale and Lease-Backs otherwise permitted by Section 6.10(ii), provided that the Net Cash Proceeds of Sale and Lease-Backs (other than Permitted Sale and Lease-Backs) shall be applied as required by Section 2.14(a); provided, further, that, in the case of clause (ii), the net proceeds received by the applicable Group Member are at least equal to the fair market value of such asset or Investment (as determined by the U.S. Borrower’s Board of Directors (or a duly authorized committee thereof));
(k) sales or other dispositions of the Equity Interests of, or other ownership interests in or assets or property, including Indebtedness, or other securities of, any Joint Venture (including the China JV); provided that, in each case, the net proceeds received by the applicable Group Member are at least equal to the fair market value of such asset or Investment (as determined by the U.S. Borrower’s Board of Directors (or a duly authorized committee thereof));
(l) any lease, assignment or sublease in the ordinary course of business which does not materially interfere with the business of the Group Members taken as a whole; and
(m) Investments made in accordance with Section 6.06 and Restricted Payments made in accordance with Section 6.04.
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 merger, amalgamation, arrangement, reorganization or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolutiondisso- lution), or convey, sell, lease or 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, or all or substantially all of the 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 Subsidiary of Borrower may be (i) merged or amalgamated with or merged into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or 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, or a Person that continues as an amalgamated corporation, shall be a Guarantor; provided further that, in the case of this clause (B), solely for the purpose of internal corporate tax restructuring, it is understood that any Guarantor may merge or amalgamate with a non-Guarantor Subsidiary of Holdings which is not so long as (x) such non-Guarantor Subsidiary merges or amalgamates with the Borrower or a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiarysubstantially simultaneous with, or be no longer than one Business Day after the internal merger or amalgamation involving a Guarantor, with the surviving person, or the Person that continues as an amalgamated corporation from such subsequent merger or amalgamation being the Borrower or a Guarantor, and (y) the Borrower shall certify to the Administrative Agent on the date of any such merger or amalgamation that such merger or amalgamation shall comply with this Section 6.8(a), or (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) 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 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 4.00% of Consolidated Total Assets (with 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); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) 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 6.6(d)(ii) in Persons other than Credit Parties (without duplication of any such Investments then outstanding under Section 6.6(d)(ii)), 4.0% of Consolidated Total Assets per Fiscal Year and (y) 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 6.6, 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 or the Bausch & Lomb 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 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Subject to the last paragraph of this Section 6.8, 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-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or licensesublease (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, leased or licensed, or acquire by purchase or otherwise (other than ordinary course funding of, purchases or other acquisitions of Portfolio Assets, inventory, materials and equipment and Capital Expenditures and operating leases in the ordinary course connection with Ordinary Course of businessBusiness) the business, or all or substantially all of 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 Restricted Subsidiary of Borrower Company may be merged with or into Borrower any Credit Party (provided that, prior to a Company Lien Event, a Subsidiary Guarantor or any subsidiary of a Subsidiary Guarantor Subsidiarymay not be merged with Company), 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 Borrower any Credit Party (provided that, prior to a Company Lien Event, a Subsidiary Guarantor or any Guarantor Subsidiary; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and any Restricted Subsidiary of Holdings which is a Subsidiary Guarantor may not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiary, or be so liquidated, wound up or dissolveddissolved if its assets are transferred to the Company, or nor shall all or any part of its the business, property or assets may of a Subsidiary Guarantor or any subsidiary of a Subsidiary Guarantor be conveyed, sold, leased, transferred or otherwise disposed ofof to Company), provided, in one transaction the case of such a merger, such Credit Party shall be the continuing or a series of transactions to surviving Person, (ii) any wholly-owned Restricted Subsidiary which that is not a Guarantor Credit Party (other than Aerospace) may be merged into any other Restricted Subsidiary that is not a Credit Party, and (iii) any Special Purpose Vehicle may be merged with or into any Credit Party or any Restricted Subsidiary or, subject to compliance with Section 5.10 and Section 5.13, any Credit Party or any Restricted Subsidiary may be merged with or into any Special Purpose Vehicle, provided, that, in each case of this clause (iii), such Credit Party or Restricted Subsidiary, as applicable, shall be the surviving or continuing Person;
(b) sales, leases, licenses sales or other dispositions of assets (i) that do not constitute Asset Sales, (ii) made to Company (other than, prior to a Company Lien Event, by a Subsidiary Guarantor or a subsidiary of a Subsidiary Guarantor) or any other Credit Party or (iii) made to any Restricted Subsidiary that is not a Credit Party, provided, that only with respect to clause (iii) (1) the consideration received by Company or any of its Restricted Subsidiaries (provided, that if such sale or other disposition is made by any Subsidiary Guarantor or any subsidiary thereof, then, prior to a Company Lien Event, such consideration must be received by a Subsidiary Guarantor or any subsidiary thereof (other than CIT Funding)) for any assets sold or disposed of to any Restricted Subsidiary that is not a Credit Party shall be in an amount at least equal to the Xxxx Xxxxxx Value thereof and (2) no less than one hundred percent (100%) thereof shall be paid in Cash or Cash Equivalents;
(i) Asset Sales, provided (1) the consideration received by Company or any of its Restricted Subsidiaries (provided, that if such sale or other disposition is made by any Subsidiary Guarantor or any subsidiary thereof, then, prior to a Company Lien Event, such consideration must be received by a Subsidiary Guarantor or any subsidiary thereof (other than CIT Funding)) for such assets shall be in an amount at least equal to the Fair Market Value thereof, (2) no less than eighty-five percent (85%) of the consideration therefor shall be paid in Cash or Cash Equivalents, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.10(a) and (4) after giving effect to such Asset Sale and application of proceeds therefrom on a pro forma basis as if such Asset Sale had occurred on the last day of the then most recent Fiscal Quarter or year for which financial statements have been delivered the Credit Parties would be in compliance with Section 6.7;
(d) disposals of damaged, obsolete or worn out property or property that is no longer useful in the business of Company or any Restricted Subsidiary;
(e) as long as no Default or Event of Default shall have occurred and be continuing, Permitted Acquisitions, the aggregate consideration for which constitutes (x) less than $150,000,000 in any Fiscal Year, and (y) less than $300,000,000 in the aggregate from the Closing Date to the date of determination;
(f) Investments made in accordance with Section 6.6 and Restricted Junior Payments made in accordance with Section 6.4;
(g) sales or other dispositions of assets constituting Restricted Collateral, provided that (i) contemporaneously with such sale or other disposition, one or more Affiliates of any Credit Party that are not Restricted Subsidiaries shall have incurred (x) Indebtedness or other obligations (as primary obligors) secured by all of such assets and/or (y) operating lease obligations with respect to such assets, (ii) both before and after giving effect to such sale or disposition and such incurrence of Indebtedness or lease, no Event of Default shall have occurred and be continuing and (iii) after giving effect to such sale or disposition and the prepayment of Term Loans required in connection therewith pursuant to Section 2.10(b) on a pro forma basis as if such transactions had occurred on the last day of the then most recent Fiscal Quarter, the Credit Parties would be in compliance with Section 6.7; and provided, further, that any such sale or other disposition shall cease to be permitted under this clause (g) unless the Term Loans shall have been prepaid in accordance with Section 2.10(b) in connection therewith as and when required thereby;
(h) conveyances, exchanges, sales, funding, transfers, leases and other dispositions, acquisitions and purchases of property in connection with Ordinary Course of Business; provided that except with respect to fixed price purchase options under leases entered into in the Ordinary Course of Business and with respect to dispositions or transfers to an Owner-Trustee in the Ordinary Course of Business where the transferor retains beneficial ownership of the property transferred or disposed: (i) for transactions with any Person (other than (x) a Subsidiary Guarantor or any Wholly-Owned Subsidiary of a Subsidiary Guarantor or (y) any Person in connection with a workout, restructuring or foreclosure in the Ordinary Course of Business), the consideration received by Company or any of its Restricted Subsidiaries (provided, that if such sale or other disposition is made by any Subsidiary Guarantor or any subsidiary thereof, then, prior to a Company Lien Event, such consideration must be received by a Subsidiary Guarantor or any subsidiary thereof (other than CIT Funding)) in connection with such transactions shall be in an amount at least equal to the Fair Market Value thereof and (ii) the consideration paid in connection with such transaction shall not be greater than the Fair Market Value thereof, in each case, as determined in the good faith business judgment of the Company or applicable Restricted Subsidiary;
(i) sale and leaseback transactions permitted by Section 6.10;
(j) sales, transfers, leases and other dispositions to Company or a Restricted Subsidiary (other than, in each case, (A) by a Subsidiary Guarantor or a subsidiary of a Subsidiary Guarantor to a Restricted Subsidiary that is not a subsidiary of a Subsidiary Guarantor and (B) to CIT Funding); provided that if the seller is a Credit Party, either (i) the buyer shall also be a Credit Party (other than, prior to a Company Lien Event, Company) or (ii) such sale, transfer or other disposition is an Investment permitted by Section 6.6;
(k) leases entered into, to the extent that they do not materially interfere with the business of Company or any Restricted Subsidiary;
(l) licenses or sublicenses of intellectual property, to the extent that they do not materially interfere with the business of Company or any Restricted Subsidiary;
(m) sales of assets and acquisitions listed on Schedule 6.8(m); provided that the consideration in respect thereof must be received by Company or any of its Restricted Subsidiaries (provided, that if such sale or other disposition is made by any Subsidiary Guarantor or any subsidiary thereof, then, prior to a Company Lien Event, such consideration must be received by a Subsidiary Guarantor or any subsidiary thereof (other than CIT Funding)) and no less than eighty-five percent (85%) of the consideration shall be paid in Cash;
(n) sales of Investments in Care Investment Trust, Inc.; provided that (1) the consideration received by Company or any of its Restricted Subsidiaries (provided, that if such sale or other disposition is made by any Subsidiary Guarantor or any subsidiary thereof, then, prior to a Company Lien Event, such consideration must be received by a Subsidiary Guarantor or any subsidiary thereof (other than CIT Funding)) for such sale(s) shall be in an amount at least equal to the Fair Market Value thereof; (2) the Company and Restricted Subsidiaries shall use commercially reasonable efforts to obtain at least eighty-five percent (85%) of such consideration in Cash; and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.10(a);
(o) any Restricted Subsidiary (other than, prior to a Company Lien Event, a Subsidiary Guarantor that is directly owned by Company) may liquidate or dissolve if Company determines in good faith that such liquidation or dissolution is in the best interests of Company and is not materially disadvantageous to the Lenders; provided that if such Restricted Subsidiary is a Credit Party, its immediate parent company shall also be a Credit Party that is a Wholly-Owned Subsidiary of a Credit Party at the time of such liquidation or dissolution;
(p) in addition to the foregoing, other sales or dispositions of assets to the extent required by applicable federal or state law, regulation or other directive; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.10(a) if permitted by such law, regulation or directive; and
Appears in 1 contract
Samples: Amendment Agreement (Cit 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 licensesub-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, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and materials, supplies, equipment and Capital Expenditures 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:
(ai) any Subsidiary of Borrower Holdings may be merged with or into Borrower or any Guarantor Subsidiary, and any Subsidiary of Holdings (other than Borrower or a Guarantor Subsidiary (other than an Immaterial Subsidiary)) may be liquidated, wound up or dissolveddissolved (following the transfer of all its assets to Borrower or a Guarantor Subsidiary), or and all or any part of its the business, property or assets of any Subsidiary of Holdings may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Guarantor Subsidiary; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and (ii) any non-Guarantor Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into Holdings or any whollySubsidiary of Holdings, and any non-owned Guarantor Subsidiary which is not a Guarantor Subsidiary, or of Holdings may be liquidated, wound up or dissolveddissolved (following the transfer of all its assets to Borrower or a Subsidiary of Borrower), or and all or any part of its the business, property or assets of any non-Guarantor Subsidiary of Holdings may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions transactions, to Borrower or any wholly-owned Subsidiary which is not a Guarantor Subsidiaryof Borrower;
(b) sales, leases, licenses 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) are less than $25,000,000 when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year; 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, (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.13(a) and (4) pending such application pursuant to Section 2.13(a) or any other use of such Net Asset Sale Proceeds permitted hereby, Borrower shall deposit all such Net Asset Sale Proceeds to the extent derived from assets constituting Fixed Collateral in the Asset Sale Proceeds Account;
(d) disposals of obsolete, worn out or surplus property;
(e) Permitted Acquisitions, the consideration for which constitutes (i) less than $7,500,000 in the aggregate in any Fiscal Year and (ii) less than $25,000,000 in the aggregate from the Closing Date to the date of determination; and
(f) 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 license, exchangesublease (as lessor or sublessor), 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 materials, supplies 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 Subsidiary of Borrower Holdings may be merged with or into Amscan, any Borrower or any Guarantor SubsidiarySubsidiary Guarantor, 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 Amscan, any Borrower or any Guarantor SubsidiarySubsidiary Guarantor; provided, that, in the case of such a merger, Amscan, such Borrower or such Guarantor SubsidiarySubsidiary Guarantor, as applicable applicable, shall be the continuing or surviving Person and the Lien on and security interest in such Collateral granted or to be granted in favor of the Administrative Agent under the Collateral Documents shall be maintained or created in accordance with Section 5.12;
(b) any Foreign Subsidiary of Holdings which is not a Guarantor Subsidiary Amscan may be merged with or into any wholly-owned other Foreign Subsidiary which is not a Guarantor Subsidiaryof Amscan, 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 Amscan or any wholly-owned Subsidiary; provided, that, in the case of such a merger, a wholly-owned Subsidiary which is not shall be the continuing or surviving Person; provided, further, in the case of a Guarantor merger of a Foreign Subsidiary with or into a Domestic Subsidiary, a Domestic Subsidiary shall be the continuing or surviving Person;
(bc) sales, leases, licenses sales or other dispositions of assets that do not constitute Asset 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), when aggregated with the proceeds of all other Asset Sales permitted only pursuant to this Section 6.08(d) within the same Fiscal Year, are less than $30,000,000; provided, that, (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Amscan (or similar governing body)) and (ii) no less than 75% thereof shall be paid in Cash or Cash Equivalents and (iii) such proceeds shall be paid to the Blocked Accounts as provided in Section 2.21;
(e) disposals of obsolete, worn out or property and any assets acquired in connection with the acquisition of another Person or a division or line of business of such Person which Amscan reasonably determines are surplus assets;
(f) Permitted Acquisitions;
(g) other acquisitions, dispositions or expenditures that constitute Investments that are permitted to be made pursuant to Section 6.07;
(h) any Subsidiary Guarantor may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 6.07; provided, that, the continuing or surviving Person shall be a Subsidiary Guarantor, which shall have complied with the requirements of Section 5.12;
(i) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(j) to Amscan or to a Borrower or Subsidiary Guarantor; provided, that, if the transferor of such property is a Loan Party the transferee thereof must either be Amscan, a Borrower or a Subsidiary Guarantor, in which event the Administrative Agent shall retain its perfected Lien on the property so disposed of, subject to the same priority as existed prior to such disposition;
(k) sales, discounting or forgiveness of Accounts in the ordinary course of business or in connection with the collection or compromise thereof;
(l) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which (i) do not materially interfere with the business of the Holdings and it Subsidiaries, or (ii) relate to closed stores;
(m) termination of leases in the ordinary course of business;
(n) transfers of property subject to casualty, eminent domain or condemnation;
(o) licenses for the conduct of licensed departments within the Loan Parties’ stores in the ordinary course of business;
(p) as long as no Event of Default hereof then exists or would arise therefrom, and no Protective Advance would result therefrom, bulk sales or other dispositions of the Loan Parties’ Inventory not in the ordinary course of business in connection with store closings, at arm’s length, provided, that, (i) such store closures and related Inventory dispositions shall not exceed, in any Fiscal Year 10% of the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of store relocations (i) occurring substantially contemporaneously, but in no event later than 10 Business Days after the related store closure date, or (ii) wherein a binding lease has been entered into prior to the related store closure date), and (iii) as of any date after the Closing Date, the aggregate number of such store closures since the Closing Date shall not exceed 20% of the greater of (A) the number of the Loan Parties’ stores in existence as of the Closing Date or (B) the number of the Loan Parties’ stores as of the first day of any Fiscal Year beginning after the Closing Date (net of store relocations (1) occurring substantially contemporaneously, but in no event later than ten (10) Business Days after the related store closure date or (2) wherein a binding lease has been entered into prior to the related store closure date), provided, that, all sales of Inventory in connection with store closings in a transaction or series of related transactions shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent and proceeds of such sales or other dispositions shall be paid to the Blocked Accounts as provided in Section 2.21;
(q) sales of non-core assets acquired in connection with a Permitted Acquisition and sales of Real Estate Assets acquired in a Permitted Acquisition which, within thirty days of the date of the acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of a store; provided that, all Net Proceeds received in connection therewith such proceeds shall be paid to the Blocked Accounts as provided in Section 2.21; (r) exchanges or swaps, including, without limitation, transactions covered by Section 1031 of the Code, of Real Estate Assets of the Loan Parties so long as the exchange or swap is made for fair value and on an arm’s length basis, provided, that, upon the consummation of such exchange or swap, (i) the Administrative Agent has a perfected Lien having the same priority as any Lien held on the Real Estate Assets so exchanged or swapped and (ii) subject to the Intercreditor Agreement, the Net Proceeds, if any, received in connection therewith such proceeds shall be paid to the Blocked Accounts as provided in Section 2.21;
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 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 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, or all or substantially all of the 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 Subsidiary of Borrower may be (i) merged or, amalgamated or consolidated with or merged, amalgamated or consolidated into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a mergermerger or, amalgamation or consolidation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person or a Person that continues as xxx merged, amalgamated or consolidated corporation and (B) in the case of such a merger or, amalgamation or consolidation involving any other Guarantor (and not involving Borrower), the surviving Person, or a Person that continues as xxx merged, amalgamated or consolidated corporation, shall be a Guarantor; provided further that, in the case of this clause (B), solely for the purpose of internal corporate tax restructuring, it is understood that any Guarantor may merge or, amalgamate or consolidate with a non-Guarantor Subsidiary of Holdings which is not so long as (x) such non-Guarantor Subsidiary merges or, amalgamates or consolidates with the Borrower or a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiarysubstantially simultaneous with, or be no longer than one Business Day after the internal merger or, amalgamation or consolidation involving a Guarantor, with the surviving person, or the Person that continues as xxx merged, amalgamated or consolidated corporation from such subsequent merger or, amalgamation or consolidation being the Borrower or a Guarantor, and (y) the Borrower shall certify to the Administrative Agent on the date of any such merger or, amalgamation or consolidation that such merger or, amalgamation or consolidation shall comply with this Section 6.8(a), or (ii) other than with respect to Borrower, reorganized, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such reorganization, liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) Asset Sales (which Asset Sale may take the form of a merger, amalgamation or similar transaction); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) 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 Documentsby Persons that are not Credit Parties 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 6.6(d)(ii) in Persons other than Credit Parties (without duplication of any such Investments then outstanding under Section 6.6(d)(ii)), 4.0% of Consolidated Total Assets per Fiscal Year and (y) 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 6.6, other than pursuant to clause (g) thereof (which Investment may take the form of (x) 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 or (y) the acquisition by purchase or otherwise of the business or fixed assets of any Subsidiary or any division or line of business or other business unit of any Subsidiary (including any such acquisition that would not constitute an Investment, so long as such acquisition (1) would be permitted by Section 6.6(d) if such acquisition were of Securities or Equity Interests of such Subsidiary or a division or line of business or other business unit of such Subsidiary and/or (2) is between and/or among Credit Parties));
(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 or the Bausch & Lomb 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 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. (a) 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-wind up or dissolve itself (or suffer any liquidation or dissolution), except (i) any Restricted Subsidiary of the Borrower may be merged or consolidated with or into the Borrower or any other Restricted Subsidiary of the Borrower (provided, that in the case of a merger or consolidation involving (A) the Borrower, then the Borrower shall be the surviving or continuing Person, (B) a Guarantor Subsidiary, then a Guarantor Subsidiary shall be the surviving or continuing Person, or (C) a wholly-owned Restricted Subsidiary, then, unless preceding sub-clause (A) or (B) applies, a wholly-owned Restricted Subsidiary shall be the surviving or continuing Person), (ii) any Restricted Subsidiary of the Borrower may be liquidated, wound up or dissolved so long as (except in the case of an Immaterial Subsidiary) if the Person being liquidated, wound up or dissolved is (A) a Credit Party, it shall have first transferred all or substantially all of its assets to another Credit Party, and (B) a wholly-owned Restricted Subsidiary, it shall have first transferred all or substantially all of its assets to a Credit Party or another wholly-owned Restricted Subsidiary and (iii) any Restricted Subsidiary of the Borrower may be merged or consolidated, or liquidated, wound up or dissolved in connection with any sale or disposition permitted pursuant to Section 6.9(b)(vii).
(b) No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, convey, sell, lease or licensesub-lease (as lessor or sub-lessor), 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 except:
(i) any sale, lease, sub-lease, transfer or licensedother disposition, in one transaction or a series of transactions, to the Borrower or any Restricted Subsidiary of the Borrower (provided, that if the transferor is (A) a Credit Party, the transferee is another Credit Party, and (B) a wholly-owned Foreign Subsidiary, the transferee is a Credit Party or another wholly-owned Foreign Subsidiary);
(ii) sales or other dispositions of assets that do not constitute Asset Sales;
(iii) disposals of obsolete, worn out or uneconomic property;
(iv) sales and other dispositions of property to the extent such property constitutes an Investment permitted by clauses (a), (c), (k), (m) and (n) of Section 6.7 provided that, in the case of such clause (a), such sales or other dispositions are at Fair Market Value and for cash received at the time of the closing of such sale or other disposition;
(v) sales and other dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business and not as part of any financing transaction or bulk sale;
(vi) sale-leaseback transactions with respect to any property (collectively, the “Permitted Sale-Leaseback Transactions”), in each case so long as (A) each such sale-leaseback transaction is an arm’s-length transaction and the Borrower or such Restricted Subsidiary, as the case may be, receives at least the Fair Market Value thereof, and (B) the total consideration received by the Borrower or such Restricted Subsidiary is cash and is paid at the time of the closing of such sale;
(vii) Asset Sales by the Borrower and its Restricted Subsidiaries (other than (x) pursuant to a sale-leaseback transaction and (y) a sale of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole), in each case so long as (A) no Default or Event of Default shall be in existence before and after giving effect to such Asset Sale, (B) the consideration received for such Asset Sale shall be in an amount at least equal to the Fair Market Value of the assets subject to such Asset Sale, (C) no less than 75% of such consideration shall be paid in cash at the time of the closing of the respective Asset Sale, (D) the aggregate amount of such Asset Sales do not exceed the greater of $20,000,000 and 2.0% of Total Assets in any Fiscal Year and (E) such Asset Sale shall not include any Capital Stock of any Restricted Subsidiary of the Borrower unless all of the Capital Stock of such Restricted Subsidiary is sold in accordance with this clause (vii); and
(viii) sales and other dispositions of accounts receivable, so long as (A) the aggregate amount of such sales and dispositions does not exceed $20,000,000 in any Fiscal Year and (B) 100% of the consideration shall be paid in cash at the time of the closing of the respective sale or disposition.
(c) No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials materials, supplies and equipment equipment, intellectual property, contract acquisition costs and Capital Expenditures 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:
(ai) any Subsidiary of Borrower may be merged with or into Borrower or any 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 Borrower or any Guarantor SubsidiaryPermitted Acquisitions; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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;and
(bii) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales;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 merger, consolidation, amalgamation, corporate reorganization or consolidationcontinuance, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation liquidation, winding-up or dissolution), or convey, sell, lease or licensesub 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, 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, 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 directly or indirectly wholly-owned Subsidiary of Borrower Holdings may be merged or amalgamated with or into a Borrower or any a Guarantor Subsidiary that is a directly or indirectly wholly-owned Subsidiary of Holdings, in each case, organized in the same jurisdiction as such 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 a Borrower or any a Guarantor Subsidiary that is a directly or indirectly wholly-owned Subsidiary of Holdings, in each case, organized in the same jurisdiction as such Subsidiary; provided, that in the case of such a merger, such Borrower or such Guarantor Subsidiary, as applicable applicable, shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryPerson;
(b) sales, leases, licenses sales or other dispositions of assets (i) that do not constitute Asset Sales or (ii) made to a Borrower or Guarantor Subsidiary that guarantees the Obligations of such Borrower organized in the same jurisdiction as the Credit Party or Subsidiary selling or otherwise disposing of such assets;
(c) Asset Sales, the 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 same Fiscal Year, are less than $1,000,000; 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 1.3(b)(ii);
(d) disposals of obsolete or worn out property, the proceeds of which are less than $100,000 with respect to any such property in any single disposition or series of related dispositions and when aggregated with all other dispositions made pursuant to this clause (d) from the Closing Date to the date of determination are less than $500,000; 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 (or similar governing body) of the Credit Party making such disposition) and the Net Asset Sales Proceeds thereof shall be applied as required by Section 1.3(b);
(e) Permitted Acquisitions;
(f) Investments made in accordance with Section 6.6;
(g) (i) sub-leases of the Real Estate Asset located at 00000 Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, and (ii) leases of up to 28,565 square feet of the Real Estate Asset located at 000 Xxxxx Xxxxxxxxx, Troy, Michigan 48084; provided, in each case that (A) the consideration received therefor shall represent not less than the fair market rental value of such Real Estate Assets (determined in good faith by the board of directors (or similar governing body) of such Person), (B) no less than one hundred percent (100%) thereof shall be paid in Cash, and (C) such lease or sub-lease is on terms and conditions, and subject to documentation, reasonably acceptable to Agent;
(h) any transactions set forth on Schedule 1.1(b) necessary for the consummation of the Reorganization.
Appears in 1 contract
Samples: Credit Agreement (Handleman Co /Mi/)
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 licensesub-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, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and materials, supplies, equipment and Capital Expenditures capital 101 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:
(ai) any Subsidiary of Borrower Holdings may be merged with or into Borrower or any Guarantor Subsidiary, and any Subsidiary of Holdings (other than Borrower or a Guarantor Subsidiary (other than an Immaterial Subsidiary)) may be liquidated, wound up or dissolveddissolved (following the transfer of all its assets to Borrower or a Guarantor Subsidiary), or and all or any part of its the business, property or assets of any Subsidiary of Holdings may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Guarantor Subsidiary; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and (ii) any non-Guarantor Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into Holdings or any whollySubsidiary of Holdings, and any non-owned Guarantor Subsidiary which is not a Guarantor Subsidiary, or of Holdings may be liquidated, wound up or dissolveddissolved (following the transfer of all its assets to Borrower or a Subsidiary of Borrower), or and all or any part of its the business, property or assets of any non-Guarantor Subsidiary of Holdings may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions transactions, to Borrower or any wholly-owned Subsidiary which is not a Guarantor Subsidiaryof Borrower;
(b) sales, leases, licenses 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) are less than $15,000,000 when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year; 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, (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.13(a) and (4) pending such application pursuant to Section 2.13(a) or any other use of such Net Asset Sale Proceeds permitted hereby, Borrower shall deposit all such Net Asset Sale Proceeds to the extent derived from assets constituting Fixed Collateral in the Asset Sale Proceeds Account;
(d) disposals of obsolete, worn out or surplus property;
(e) Permitted Acquisitions, the consideration for which constitutes (i) less than $5,000,000 in the aggregate in any Fiscal Year and (ii) less than $15,000,000 in the aggregate from the Closing Date to the date of determination; and
(f) Investments made in accordance with Section 6.7.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Stanadyne 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 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 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, or all or substantially all of the 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 Subsidiary of Borrower may be (i) merged or amalgamated with or merged into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or 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, or a Person that continues as an amalgamated corporation, shall be a Guarantor; provided further that, in the case of this clause (B), solely for the purpose of internal corporate tax restructuring, it is understood that any Guarantor may merge or amalgamate with a non-Guarantor Subsidiary of Holdings which is not so long as (x) such non-Guarantor Subsidiary merges or amalgamates with the Borrower or a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiarysubstantially simultaneous with, or be no longer than one Business Day after the internal merger or amalgamation involving a Guarantor, with the surviving person, or the Person that continues as an amalgamated corporation from such subsequent merger or amalgamation being the Borrower or a Guarantor, and (y) the Borrower shall certify to the Administrative Agent on the date of any such merger or amalgamation that such merger or amalgamation shall comply with this Section 6.8(a), or (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) 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 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 $200,000,0004.00% of Consolidated Total Assets (with 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); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) 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 6.6(d)(ii) in Persons other than Credit Parties, $200,000,0002.0% of Consolidated Total Assets per Fiscal Year and (y) 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 6.6, 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 or the Bausch & Lomb 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 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals 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 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, 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:
(ai) any Subsidiary of Borrower Holdings (other than the Borrower) may be merged or consolidated with or into 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 6.6 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 Borrower or any Non-Guarantor Subsidiary; provided, provided that (A) in the case of such a mergermerger or consolidation involving the Borrower, the Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and any Subsidiary (B) in the case of Holdings which is not such a Guarantor Subsidiary may be merged with merger or into any wholly-owned Subsidiary which is not consolidation involving a Guarantor Subsidiary, such 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 an entity that shall become a Guarantor SubsidiarySubsidiary upon the consummation of such merger or consolidation, shall be the continuing or surviving Person;
(b) sales, leases, licenses or other dispositions Dispositions of assets that do not constitute Asset Sales;
(c) Asset Sales (other than of any Specified Non-Core Asset B), 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 $5,000,000 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 $10,000,000; 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 Holdings or the Borrower (or similar governing body)), (B) no less than 75% of such consideration shall be paid in Cash, and (C) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.10(a);
(d) Dispositions of obsolete, damaged, worn out or surplus property;
(e) the TLA Disposition; provided, that any assets transferred to, or other Investments made in, TLA Acquisition Corp. by the Credit Parties after the Amendment No. 1 Effective Date may not be Disposed of pursuant to this clause (e);
(f) Investments made in accordance with Section 6.6;
(g) Dispositions of Inventory, Cash and Cash Equivalents in the ordinary course of business;
(h) any such transaction that is a Restricted Payment permitted pursuant to Section 6.4;
(i) 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 clauses (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 (iii) 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) [reserved];
(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;
(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, the consideration received for such assets shall be in an amount at least equal to the Fair Market Value thereof;
(u) [reserved];
(v) Disposition of any Specified Non-Core Asset B; 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 Holdings or the Borrower (or similar governing body)); 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) 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 connection with Consolidated 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 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 Merge or consolidationconsolidate, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or 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, 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 Subsidiary of any Borrower may be merged with or into such Borrower or any Guarantor SubsidiaryWholly-Owned Subsidiary Guarantor, or 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 such Borrower or any Guarantor SubsidiaryWholly-Owned Subsidiary Guarantor; provided, that in the case of such a merger, the applicable Borrower or such Guarantor SubsidiaryWholly-Owned Subsidiary Guarantor, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryPerson;
(b) sales, leases, licenses any Subsidiary of any Borrower may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to such Borrower or any Wholly-Owned Subsidiary Guarantor;
(c) sales or other dispositions of assets that do not constitute Asset 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) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $40,000,000; 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 of the Borrower Representative (or similar governing body)), (2) no less than 75% thereof shall be paid in Cash, and (3) the Net Cash Proceeds thereof shall be applied as required by Section 2.27(a);
(e) disposals of damaged, obsolete, worn out or surplus property;
(f) Permitted Acquisitions; provided that in respect of acquisition targets not domiciled within the United States, the consideration for such Persons or assets shall be limited to the Available Amount;
(g) an exchange or “swap” of fixed tangible assets of the Loan Parties or any of their Subsidiaries for similar fixed tangible assets of a Person (other than another Loan Party or its Subsidiaries) or for credit against such similar assets in the ordinary course of business and consistent with past business practices; provided that such Loan Party (or its subsidiary) received reasonable equivalent value for such assets; and provided further that the fair market value of all such assets (as determined in good faith and in accordance with customary valuation techniques by the chief financial officer or vice president of Finance of the Borrowers) exchanged or swapped does not exceed $15,000,000 per Fiscal Year;
(h) any disposition of real property to a Governmental Authority that results in Net Cash Proceeds applied in accordance with Section 2.27(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 Borrowers and their Subsidiaries or the disposition of any equity interest in a Technology Entity pursuant to a Technology Acquisition Claw-Back;
(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 consistent with customary industry practice (and not as part of any bulk sale or financing of receivables); and
(k) Investments made in accordance with Section 6.06 and Restricted Junior Payments made in accordance with Section 6.04.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Fairmount Santrol 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 merger, amalgamation, continuation or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation liquidation, winding-up or dissolution), or convey, sell, lease or licensesub-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, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials materials, supplies, 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 equity 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 Subsidiary of Borrower Holdings may be merged merged, continued or amalgamated with or into Borrower the Company or any Guarantor Subsidiary or if not the Company or any Guarantor Subsidiaries, another non-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 Borrower the Company or any Guarantor Subsidiary or if not the Company or any Guarantor Subsidiaries, another non-Guarantor Subsidiary; provided, in the case of such a merger, Borrower the Company or such Guarantor Subsidiary or if not the Company or any Guarantor Subsidiaries, another non-Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryPerson;
(b) sales, leases, licenses 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) are less than $20,000,000 when aggregated with the proceeds of all other Asset Sales made pursuant to this clause
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Easton-Bell Sports, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter 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 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 Consolidated 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 all of beneficial ownership the Equity Interests of, any Person or any a business line or unit or a division or line of business or other business unit of of, any Person, except:
(a) (i) any Subsidiary of Borrower Group Member may be merged or consolidated with or into Borrower or any Guarantor Subsidiaryother Group Member, or 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 Borrower or any Guarantor Subsidiaryother Group Member; provided, that (x) in the case of a merger or consolidation of a Group Member that is not a Loan Party with or into a Borrower or Guarantor, such a merger, Borrower or such Guarantor SubsidiaryGuarantor, as applicable applicable, shall be the continuing or surviving Person, (y) in the case of a merger or consolidation of a Guarantor with or into another Guarantor, a Guarantor shall be the continuing or surviving Person and any Subsidiary (z) in the case of Holdings which is not a merger or consolidation of a Guarantor Subsidiary may be merged with or into a Borrower, such Borrower shall be the continuing or surviving Person, and (ii) any wholly-owned Restricted Subsidiary which is not may merge with any other person in order to effect an Investment permitted pursuant to Section 6.06 so long as the continuing or surviving person shall be a Guarantor Restricted Subsidiary, or which shall be liquidated, wound up or dissolved, or all or any part a Loan Party if the merging Restricted Subsidiary was a Loan Party and which together with each of its businessRestricted Subsidiaries shall have complied with the requirements of Section 5.12, property 5.13 and 5.14, as applicable and if such transaction involves the U.S. Borrower, the U.S. Borrower shall be the continuing 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 Subsidiarysurviving Person;
(b) salesany Group Member (other than the U.S. Borrower in the case of a disposition of all of its assets) may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to a Borrower or any other Loan Party, leases, licenses and any Group Member that is not a Loan Party may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to another Group Member that is not a Loan Party;
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(i) 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 pursuant to this clause (d)(i) in any Fiscal Year, are less than (x) 2.0% of Consolidated Total Assets plus (y) an amount equal to any unutilized portion of the amount permitted under subclause (x) for any preceding Fiscal Year; provided that in no event shall the proceeds of any Asset Sale, when aggregated with the proceeds of all other Asset Sales made pursuant to this clause (d)(i) in any Fiscal Year, exceed 5.0% of Consolidated Total Assets; and (ii) the Asset Sale described on Schedule 6.08(d); provided that, in the case of each of clause (i) and (ii), (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 U.S. Borrower (or a duly authorized committee thereof)), (2) except in the case of any Asset Sale to any Restricted Subsidiary, no less than 75.0% thereof shall be paid in cash or Cash Equivalents, and (3) except in the case of any Asset Sale to any Restricted Subsidiary, the Net Cash Proceeds thereof shall be applied as required by Section 2.14(a);
(e) any Group Member may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business (x) which are overdue, or (y) which such Group Member may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with prudent business practice (and not as part of any bulk sale or financing of receivables);
(f) any Group Member may enter into licenses or sublicenses of Software, Trademarks and other Intellectual Property and general intangibles in the ordinary course of business and which do not materially interfere with the business of the Group Members taken as a whole;
(g) (i) any disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing and (ii) any disposition of accounts receivable in connection with receivables factoring arrangements in the ordinary course of business;
(h) dispositions of cash and Cash Equivalents;
(i) Permitted Acquisitions; provided, that in respect of acquisitions of Persons which do not become Loan Parties or of assets which are not acquired by Loan Parties, the consideration for such Persons or assets shall not exceed an aggregate amount of 5.0% of Consolidated Total Assets over the term of this Agreement; and
(j) (i) Permitted Sale and Lease-Backs and (ii) Sale and Lease-Backs otherwise permitted by Section 6.10(ii), provided that the Net Cash Proceeds of Sale and Lease-Backs (other than Permitted Sale and Lease-Backs) shall be applied as required by Section 2.14(a); provided, further, that, in the case of clause (ii), the net proceeds received by the applicable Group Member are at least equal to the fair market value of such asset or Investment (as determined by the U.S. Borrower’s Board of Directors (or a duly authorized committee thereof));
(k) sales or other dispositions of the Equity Interests of, or other ownership interests in or assets or property, including Indebtedness, or other securities of, any Joint Venture (including the China JV); provided that, in each case, the net proceeds received by the applicable Group Member are at least equal to the fair market value of such asset or Investment (as determined by the U.S. Borrower’s Board of Directors (or a duly authorized committee thereof));
(l) any lease, assignment or sublease in the ordinary course of business which does not materially interfere with the business of the Group Members taken as a whole; and
(m) Investments made in accordance with Section 6.06 and Restricted Payments made in accordance with Section 6.04.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Phillips Van Heusen Corp /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 licensesub-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, 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, 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 Subsidiary of Parent Borrower may be merged with or into Parent Borrower or any Guarantor Subsidiary (but, in each case, with respect to periods prior to a UK Production Entity Inclusion Date, no member of such UK Production Entity Group shall be merged with or into Parent Borrower or any other 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 Parent Borrower or any Guarantor Subsidiary; providedprovided that, in the case of such a merger, Parent Borrower or such Guarantor SubsidiarySubsidiary (other than RLJ Australia), as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryPerson;
(b) salessales of inventory in the ordinary course of business;
(c) Asset Sales (other than (x) Media Rights constituting a portion of the Media Library, leases(y) and Asset Sales in respect of Capital Stock in any member of the ACL Group, licenses RLJ Entertainment Holdings Ltd. and Acorn Productions and (z) any property or asset of any member of the ACL Group, RLJ Entertainment Holdings Ltd. and Acorn Productions), 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 hereunder, 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 of Parent 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);
(d) disposals of obsolete, worn out or surplus equipment in an amount not to exceed $500,000 in the aggregate during the term of this Agreement;
(e) Permitted Acquisitions;
(f) Investments made in accordance with Section 6.6;
(g) non-exclusive licenses of patents, trademarks and other Intellectual Property rights granted by Parent Borrower or any of its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of Parent Borrower or such Subsidiary and do not result in the loss of use of any Media Rights that constitute a portion of the Media Library;
(h) conversions of Cash Equivalents into cash or other Cash Equivalents;
(i) the sale, assignment, lease, conveyance, transfer or other disposition of property by (i) Parent Borrower or any Subsidiary of Parent Borrower to any Credit Party, (ii) any Subsidiary of Parent Borrower that is not a Credit Party to any other Subsidiary of Parent Borrower that is not a Credit Party (but, in each case, (x) with respect to periods prior to a UK Production Entity Inclusion Date, other than to a member of such UK Production Entity Group and (y) with respect to periods prior to the ACL becoming a wholly-owned Subsidiary, sale, assignment, lease, conveyance, transfer or other disposition of property by any member of the ACL Group to a Subsidiary that is not a Credit Party) and (iii) any Credit Party to any Subsidiary that is not a Credit Party; provided that, with respect to this clause (iii), the fair market value of such assets shall not exceed $250,000 in the aggregate during the term of this Agreement; provided further that, with respect to any sale, assignment, lease, conveyance, transfer or other disposition pursuant to this Section 6.8(i) to RLJ Australia, the fair market value of such assets shall not exceed at any time $1,000,000;
(j) subject to Section 2.11, dispositions resulting from a casualty event; and
(k) dispositions of assets delinquent Accounts in connection with the compromise, settlement or collection thereof (and not as part of any financing transaction), in the ordinary course of business; provided that, (x) no such dispositions shall be permitted in respect of Accounts that do are less than ninety (90) days overdue and (y) if any such Account is at least ninety (90) days overdue but less than one hundred eighty (180) days overdue, the face amount of each such Account shall not constitute Asset Sales;exceed $250,000.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (RLJ Entertainment, 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-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchangesublease (as lessor or sublessor), 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, or all or substantially all of the property or fixed assets of, 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 become a general partner in any partnership, except:
(a) any Subsidiary of the Lead Borrower may be merged or consolidated with or into Borrower the Borrowers or any Guarantor Subsidiaryother Subsidiary of the Lead Borrower, 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 Borrower the Borrowers or any Guarantor Subsidiaryto a Guarantor; providedprovided that, in the case of such any merger or consolidation involving a merger, Borrower or such Guarantor Wholly-Owned Subsidiary, as applicable the Person formed by such merger or consolidation shall be the continuing or surviving Person and any a Wholly-Owned Subsidiary of Holdings the Borrowers; provided, further that, in the case of any such merger or consolidation to which is not a Guarantor Subsidiary may is a party, the Person formed by such merger or consolidation shall be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryGuarantor;
(b) sales, leases, licenses sales or other dispositions 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) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $50,000,000 and (ii) when aggregated with the proceeds of all other Asset Sales made after the Closing Date and prior to the date of determination, are less than $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 (if the value is greater than $5,000,000, as determined in good faith by the Board of Directors of the Lead Borrower) and (B) no less than 90% of such consideration shall be paid in cash or in Capital Stock of the purchaser;
(d) disposals of obsolete, worn out or surplus property;
(e) Permitted Acquisitions;
(f) Investments made in accordance with Section 7.7;
(g) (i) Asset Sales by the Borrowers or Guarantors to any of their Subsidiaries that are not Guarantors or to any Person in which the Borrowers or one or more Wholly-Owned Subsidiaries of the Borrowers own or will own upon consummation of the Asset Sale 50% of the Capital Stock of such Person and (ii) Dispositions of no more than 50% of the Capital Stock of a Wholly-Owned Subsidiary that is not a Guarantor to any Person; provided the consideration received for such assets or Dispositions in the case of the foregoing clauses (i) and (ii), as applicable, shall be in an amount at least equal to the fair market value thereof (if the value is greater than $5,000,000, as determined in good faith by the Board of Directors of the Lead Borrower);
(h) Asset Sales among the Loan Parties; and
(i) Asset Sales among Subsidiaries of the Borrowers that are not Guarantors.
Appears in 1 contract
Samples: Credit Agreement (Amedisys 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 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, or all or substantially all of the 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 Subsidiary of Borrower may be (i) merged or amalgamated with or merged into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or 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, or a Person that continues as an amalgamated corporation, shall be a Guarantor; provided further that, in the case of this clause (B), solely for the purpose of internal corporate tax restructuring, it is understood that any Guarantor may merge or amalgamate with a non-Guarantor Subsidiary of Holdings which is not so long as (x) such non-Guarantor Subsidiary merges or amalgamates with the Borrower or a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiarysubstantially simultaneous with, or be no longer than one Business Day after the internal merger or amalgamation involving a Guarantor, with the surviving person, or the Person that continues as an amalgamated corporation from such subsequent merger or amalgamation being the Borrower or a Guarantor, and (y) the Borrower shall certify to the Administrative Agent on the date of any such merger or amalgamation that such merger or amalgamation shall comply with this Section 6.8(a), or (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) 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 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 4.00% of Consolidated Total Assets (with 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); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) 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 6.6(d)(ii) in Persons other than Credit Parties, 2.0 (without duplication of any such Investments then outstanding under Section 6.6(d)(ii)), 4.0% of Consolidated Total Assets per Fiscal Year and (y) 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 6.6, 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 or the Bausch & Lomb 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 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
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-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or licensesub 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, leased or licensed, 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 Restricted Subsidiary of Borrower may be merged with or into Borrower or any 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 Borrower or any Guarantor Subsidiary; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person Person, and any Restricted Subsidiary of SuperHoldCo (other than Holdings and Borrower) which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Wholly Owned Restricted Subsidiary which is not 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 Wholly Owned Restricted Subsidiary which is not a Guarantor Subsidiary;
(b) sales, leases, licenses or other dispositions of assets that do not constitute Asset SalesSales and sales or other dispositions of equipment that is obsolete, worn-out, condemned or no longer used or useful in the business of SuperHoldCo, Holdings, Borrower or any of its Restricted Subsidiaries and other assets set forth on Schedule 6.09;
(c) Asset Sales by Borrower or any of its Restricted Subsidiaries, 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) do not exceed $25,000,000 in the aggregate for all such Asset Sales from and after the Closing Date; provided that (i) after giving effect to such Asset Sale (and after giving effect to any Credit Extension or any prepayment or cash collateralization of the Obligations on the date of such Asset Sale), (A) the Total Utilization of Revolving Commitments shall not exceed an amount equal to (x) the lesser of the Revolving Commitments and the Borrowing Base then in effect, minus, (y) the Availability Block; and (B) the Aggregate Credit Exposure shall not exceed the amount equal to the lesser of (1) the Collateral Amount minus the Availability Block, and (2) the aggregate amount authorized by the Interim Order or the Final Order, as applicable, (ii) 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)), (iii) no less than 80% thereof shall be paid in Cash, and (iv) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14;
(d) Investments made in accordance with Section 6.07; and
(e) prior to receipt of notice from Administrative 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
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 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 businessbusiness and capital expenditures permitted by Section 6.7(c)) the business, or all or substantially all of the 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 Subsidiary of Borrower Parent may be (i) merged or amalgamated with or merged into Parent, Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryParent; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Parent or Borrower, Borrower Parent or such Guarantor SubsidiaryBorrower, as applicable the case may be, shall be the continuing or surviving Person and (B) in the case of such a merger or amalgamation involving any Subsidiary of Holdings which is other Guarantor (and not involving Parent or Borrower), the surviving Person shall be a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor SubsidiaryGuarantor, or be (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Parent determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Parent and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) 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 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 $150,000,000 (with 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); 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 of Parent (or similar governing body) of Parent 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) the Merger;
(i) 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 Parent); provided (x) in respect of acquisition targets that do not, upon such acquisition, become Credit Parties, the consideration for such Persons or assets (other than Equity Interests of Parent issued in payment of a portion of such consideration and the net proceeds of the issuance of Equity Interests to the extent used to pay any portion of such compensation) shall not exceed, collectively with any Investment permitted under Section 6.6(d) in Subsidiaries other than Credit Parties, $100,000,000 per Fiscal Year and (y) immediately prior to such Permitted Acquisition and on a Pro Forma Basis after giving effect thereto, the Leverage Ratio of Parent shall be at least 0.25 times lower than the Leverage Ratio for the applicable period set forth in Section 6.7(b) (i.e. if the required ratio in Section 6.7(b) is 3.50 to 1.0 the requirement to incur Indebtedness under this clause (s) shall be 3.25 to 1.0); and
(j) Investments made in accordance with Section 6.6, 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 Parent). For purposes of clause (c) of this Section 6.8, each of the following will be deemed Cash:
(i) any liabilities, as shown on Parent’s most recent consolidated balance sheet, of Parent 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 Parent or such Subsidiary from further liability;
(ii) any securities, notes or other obligations received by Parent or any such Subsidiary from such transferee that are converted by Parent 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 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International)
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 licensesub-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, 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, 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 Subsidiary of Borrower Company may be merged or amalgamated with or into Borrower Company or any 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 Borrower Company or any Guarantor Subsidiary; provided, in the case of such a mergermerger (x) involving Company, Borrower or such Guarantor Subsidiary, as applicable Company shall be the continuing or surviving Person Person, and any Subsidiary of Holdings which is not (y) involving a Guarantor Subsidiary and not involving Company, such Guarantor Subsidiary shall be the continuing or surviving Person;
(b) Holdings may be merged or amalgamated with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiaryother Parent Company or Company, 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 transactions, to any whollyother Parent Company or Company; provided, in the case of such a merger (x) involving Company, Company shall be the continuing or surviving Person and (y) not involving Company, Holdings shall be the continuing or surviving Person;
(c) any Non-owned Guarantor Subsidiary which is not may be merged or amalgamated with or into any other Non-Guarantor Subsidiary;
(d) so long as no Material Adverse Effect could reasonably be expected to result therefrom, any Subsidiary 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 any of Holdings' Subsidiaries; provided that if such Subsidiary was a Guarantor Subsidiary, then the acquiring entity must be Company or a Guarantor Subsidiary;
(be) sales, leases, licenses sales or other dispositions of assets that do not constitute Asset Sales;
(f) 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 U.S.$5.0 million 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 U.S.$20.0 million; 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 Company), (2) no less than 75% thereof shall be paid in Cash or Cash Equivalents, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.16(a). For purposes of this clause (f), any liabilities, as shown on Holdings' most recent consolidated balance sheet, of Company or any of its Subsidiaries (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases Company or such Subsidiary from such liabilities shall be deemed to be Cash;
(g) disposals of damaged, obsolete, worn out or surplus property or property not otherwise used or useful in the conduct of the businesses of Holdings and its Subsidiaries;
(h) Permitted Acquisitions; provided that the aggregate consideration for Permitted Acquisitions shall not exceed U.S.$50.0 million in the aggregate in any Fiscal Year (excluding any such consideration consisting of Qualified Capital Stock of any Parent Company); provided further that the aggregate consideration for acquisitions of Capital Stock of any Persons that do not thereby become Guarantor Subsidiaries shall not exceed U.S.$20.0 million in the aggregate in any Fiscal Year (excluding any such consideration consisting of Qualified Capital Stock of any Parent Company);
(i) Investments made in accordance with Section 6.7;
(j) sales of accounts receivable pursuant to the Sodex Factoring Agreement and factoring agreements on similar terms that are reasonably satisfactory to Administrative Agent; provided that the aggregate amount of accounts receivable subject to all factoring agreements under this clause (j) shall not exceed U.S.$15.0 million at any time outstanding (it being understood that an account shall cease to be outstanding for this purpose when it has been collected);
(k) dispositions under Hedge Agreements permitted hereunder;
(l) the sale of the St. Xxxxx Facility;
(m) the sale all of the Capital Stock or all or substantially all of the assets of any Foreign Subsidiaries existing on the Closing Date;
(n) the sale of all, but not less than all of, the Spa Business; and
(o) licenses, leases and subleases of real or personal property in the ordinary course of business. To the extent the Requisite Lenders waive the provisions of this Section 6.9 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 6.9, such Collateral (unless sold to Holdings or any of its Subsidiaries) shall be sold free and clear of the Liens created by the Collateral Documents, and the Agents shall take all actions they deem appropriate in order to effect the foregoing.
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 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 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, or all or substantially all of the 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 Subsidiary of Borrower Parent may be (i) merged or amalgamated with or merged into Parent, Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryParent; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Parent or Borrower, Borrower Parent or such Guarantor SubsidiaryBorrower, as applicable the case may be, shall be the continuing or surviving Person and (B) in the case of such a merger or amalgamation involving any Subsidiary of Holdings which is other Guarantor (and not involving Parent or Borrower), the surviving Person shall be a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor SubsidiaryGuarantor, or be (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Parent determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Parent and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) 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 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 $200,000,000 (with 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); 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 of Parent (or similar governing body) of Parent 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) 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 Parent); provided (x) in respect of acquisitions of Equity Interests of acquisition targets or assets that are not subject to the Collateral Documents, the consideration for such Equity Interests or assets (other than Equity Interests of Parent issued in payment of a portion of such consideration and the net proceeds of the issuance of Equity Interests to the extent used to pay any portion of such compensation) shall not exceed, collectively with any Investment permitted under Section 6.6(d) in Subsidiaries other than Credit Parties, $100,000,000 per Fiscal Year and (y) immediately prior to such Permitted Acquisition and on a Pro Forma Basis after giving effect thereto, the Leverage Ratio of Parent shall be less than or equal to 4.50 to 1.00, as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Section 5.1(a) or (b); provided, further, that, at any time Term Loan Commitments or Term Loans are outstanding under this Agreement, Permitted Acquisitions (other than the Acquisitions) shall not be permitted under this clause (h) except for (i) Permitted Acquisitions described on Schedule 6.8 and (ii) Permitted Acquisitions the individual consideration for which does not exceed $50,000,000 and the aggregate consideration for which, taken together with Investments under Section 6.6(i), does not exceed $100,000,000;
(i) Investments made in accordance with Section 6.6, 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 Parent);
(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 Parent or 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 described on Schedule 6.8; and
(n) Restricted Junior Payments permitted under Section 6.4 and payments in respect of the redemption of the Parent Convertible Notes in an aggregate amount not to exceed $200,000,000. For purposes of clause (c) of this Section 6.8, each of the following will be deemed Cash:
(i) any liabilities, as shown on Parent’s most recent consolidated balance sheet, of Parent 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 Parent or such Subsidiary from further liability;
(ii) any securities, notes or other obligations received by Parent or any such Subsidiary from such transferee that are converted by Parent 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 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Borrower Credit Party shall, nor shall it permit any of its Subsidiaries to, (i) enter into any transaction of merger merger, amalgamation or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or (ii) convey, sell, lease or 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, 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:
(ai) any Subsidiary of Borrower or a Guarantor (other than Sponsor) may be merged or amalgamated with or into Borrower or any Guarantor SubsidiaryGuarantor, as the case may be, 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 Borrower or any Guarantor Subsidiary(other than Sponsor); provided, in the case of such a merger, Borrower Borrower, or such Guarantor Subsidiary(other than Sponsor), as applicable applicable, shall be the continuing or surviving Person and provided further that no such merger or amalgamation shall be permitted if any Non-Recourse Indebtedness of the entity merging with or into Borrower or such other Guarantor (other than Sponsor) shall become recourse to the assets of Borrower or such Guarantor (other than Sponsor) and (ii) any Subsidiary of Holdings which that is not a Guarantor Subsidiary (other than a Borrower Credit Party) may be merged or amalgamated with or into any wholly-owned other Subsidiary which that is not a Guarantor SubsidiaryGuarantor, as the case may be, 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 transactions, to any wholly-owned Subsidiary which that is not a Guarantor SubsidiaryGuarantor;
(b) sales, leases, licenses sales or other dispositions of assets that do not constitute Asset Sales;
(c) Asset Sales that are (i) pursuant to an exercise of a purchase option by a counterparty to a power purchase agreement, tolling agreement, capacity purchase agreement or equivalent arrangement, as in effect on the Effective Date, to which Borrower or any Subsidiary is a party on the Effective Date, (ii) with respect to the assets of, or Borrower’s direct or indirect Equity Interests in, Manchief Power Company, LLC, or (iii) for an aggregate consideration of less than $400,000,000 in the aggregate since the Effective Date; provided that in no event shall any Asset Sale by or of Xxxxxx Xxxxxx (including the sale of all or any portion of Borrower’s direct or indirect Equity Interests in Xxxxxx Xxxxxx) be permitted; provided further 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 the General Partner, acting on behalf of Borrower (or similar governing body)), (B) no less than 75% thereof shall be paid in Cash or Cash Equivalents, (C) the Net Asset Sale Proceeds thereof, if any, shall be applied as required by Section 2.15(a) and (D) no Event of Default shall have occurred and be continuing or would result therefrom;
(d) sales or other dispositions of assets that constitute a Piedmont Disposition, subject to the requirements of the second proviso of Section 2.15(a);
(e) Permitted Acquisitions, the Acquisition Consideration for which constitutes (i) less than $150,000,000 in the aggregate in any Fiscal Year, and (ii) less than $500,000,000 in the aggregate from the Effective Date to the date of determination;
(f) Investments made in accordance with Section 6.6;
(g) Borrower and its Subsidiaries may lease or license real or personal property (whether tangible or intangible) so long as (i) any such lease or license does not create a Capital Lease except to the extent permitted by Section 6.1(i) and (ii) any such license of Intellectual Property is granted in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of Borrower or such Subsidiary;
(h) Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable or notes receivable arising in the ordinary course of business but only in connection with the compromise or collection thereof;
(i) Borrower and its Subsidiaries may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business;
(j) the abandonment or non-renewal by Borrower of its Intellectual Property Assets which Borrower has reasonably determined will not materially detract from the value of the business of Borrower and its Subsidiaries, taken as a whole; and
(k) a Sale and Leaseback Transaction for which the aggregate sale consideration, together with the aggregate sale consideration of all other Sale and Leaseback Transactions from the Effective Date through the applicable date of determination, is not in excess of $25,000,000 in the aggregate.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Atlantic Power Corp)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, (i) enter into any transaction of merger merger, amalgamation or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or (ii) convey, sell, lease or 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, 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:
(ai) any Subsidiary of Borrower or a Guarantor may be merged or amalgamated with or into Borrower or any Guarantor SubsidiaryGuarantor, as the case may be, 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 Borrower or any Guarantor SubsidiaryGuarantor; provided, in the case of such a merger, Borrower Borrower, or such Guarantor SubsidiaryGuarantor, as applicable applicable, shall be the continuing or surviving Person and provided further that no such merger or amalgamation shall be permitted if any Non-Recourse Indebtedness of the entity merging with or into Borrower or such other Guarantor shall become recourse to the assets of Borrower or such Guarantor and (ii) any Subsidiary of Holdings which that is not a Guarantor Subsidiary (other than a Credit Party) may be merged or amalgamated with or into any wholly-owned other Subsidiary which that is not a Guarantor SubsidiaryGuarantor, as the case may be, 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 transactions, to any wholly-owned Subsidiary which that is not a Guarantor SubsidiaryGuarantor;
(b) sales, leases, licenses sales or other dispositions of assets that do not constitute Asset Sales;
(c) Asset Sales (other than (i) any Asset Sale pursuant to an exercise of a purchase option by a counterparty to a power purchase agreement, tolling agreement, capacity purchase agreement or equivalent arrangement, as in effect on the Effective Date, to which Borrower or any Subsidiary is a party on the Effective Date, and (ii) an Asset Sale with respect to the assets of, or Borrower’s director or indirect Equity Interests in, Manchief Power Company, LLC) for an aggregate consideration of less than $250,000,000 in the aggregate since the Effective Date, provided that in no event shall any Asset Sale by or of Xxxxxx Xxxxxx (including the sale of all or any portion of Borrower’s direct or indirect Equity Interests in Xxxxxx Xxxxxx) be permitted and provided further that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the General Partner, acting on behalf of Borrower (or similar governing body)), (ii) no less than 75% thereof shall be paid in Cash or Cash Equivalents, (iii) the Net Asset Sale Proceeds thereof, if any, shall be applied as required by Section 2.14(a) and (iv) no Event of Default shall have occurred and be continuing or would result therefrom;
(d) [reserved];
(e) Permitted Acquisitions, the Acquisition Consideration for which constitutes (i) less than $150,000,000 in the aggregate in any Fiscal Year, and (ii) less than $300,000,000 in the aggregate from the Effective Date to the date of determination;
(f) Investments made in accordance with Section 6.6;
(g) Borrower and its Subsidiaries may lease or license real or personal property (whether tangible or intangible) so long as (i) any such lease or license does not create a Capital Lease except to the extent permitted by Section 6.1(i) and (ii) any such license of Intellectual Property is granted in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of Borrower or such Subsidiary;
(h) Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable or notes receivable arising in the ordinary course of business but only in connection with the compromise or collection thereof;
(i) Borrower and its Subsidiaries may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business;
(j) the abandonment or non-renewal by Borrower of its Intellectual Property Assets which Borrower has reasonably determined will not materially detract from the value of the business of Borrower and its Subsidiaries, taken as a whole; and
(k) a Sale and Leaseback Transaction for which the aggregate sale consideration is not in excess of $25,000,000.
Appears in 1 contract
Samples: Loan Agreement (Atlantic Power 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 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 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 CG&R Draft Last Saved: 02/0620/2013 14:3244 pm 10174795v19 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, or all or substantially all of the 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 Subsidiary of Borrower may be (i) merged or amalgamated with or merged into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person or a Person that continues as an amalgamated corporation and (B) in the case of such a merger or amalgamation involving any Subsidiary of Holdings which is other Guarantor (and not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiaryinvolving Borrower), the surviving Person, or a Person that continues as an amalgamated corporation, shall be a Guarantor, or (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) 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 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 $200,000,000 (with 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); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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; CG&R Draft Last Saved: 02/0620/2013 14:3244 pm 10174795v19
(h) 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 6.6(d)(ii) in Persons other than Credit Parties, $200,000,000 per Fiscal Year and (y) 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 6.6, 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; CG&R Draft Last Saved: 02/0620/2013 14:3244 pm 10174795v19
(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 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals 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, arrangement, reorganization or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or 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, or all or substantially all of the 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 Subsidiary of Borrower may be (i) merged or amalgamated with or merged into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person or a Person that continues as an amalgamated corporation and (B) in the case of such a merger or amalgamation involving any Subsidiary of Holdings which is other Guarantor (and not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiaryinvolving Borrower), the surviving Person, or a Person that continues as an amalgamated corporation, shall be a Guarantor, or (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction); CG&R Draft Last Saved: 12/21/201201/23/2013 11:03 am 8950852v42:57 pm 8597568v15
(c) 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 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 $200,000,000 (with 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); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);
(g) Asset 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) 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 6.6(d)(ii) in Persons other than Credit Parties, $200,000,000 per Fiscal Year and (y) 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 6.6, 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; CG&R Draft Last Saved: 12/21/201201/23/2013 11:03 am 8950852v42:57 pm 8597568v15 (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);
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals 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, arrangement, reorganization or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or 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, or all or substantially all of the 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 Subsidiary of Borrower Parent may be (i) merged or amalgamated with or merged into Parent, Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryParent; provided, provided that (A) in the case of such a mergermerger or amalgamation involving Parent or Borrower, Borrower Parent or such Guarantor SubsidiaryBorrower, as applicable the case may be, shall be the continuing or surviving Person and (B) in the case of such a merger or amalgamation involving any Subsidiary of Holdings which is other Guarantor (and not involving Parent or Borrower), the surviving Person shall be a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor SubsidiaryGuarantor, or be (ii) other than with respect to Borrower, liquidated, wound up or dissolveddissolved if Parent determines in good faith that such liquidation, winding up or all or any part dissolution is in the best interest 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 Parent and is not a Guarantor Subsidiarymaterially disadvantageous to the Lenders;
(b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset SalesSales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction);
(c) 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 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 $200,000,000 (with 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); 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 of Parent (or similar governing body) of Parent 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.12(a);
(d) 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 2.12(a);
(f) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.12(a);
(g) Asset 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) 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 Parent); provided (x) in respect of acquisitions of Equity Interests of acquisition targets or assets that are not subject to the Collateral Documents, the consideration for such Equity Interests or assets (other than Equity Interests of Parent issued in payment of a portion of such consideration and the net proceeds of the issuance of Equity Interests to the extent used to pay any portion of such compensation) shall not exceed, collectively with any Investment permitted under Section 6.6(d) in Subsidiaries other than Credit Parties, $100,000,000 per Fiscal Year and (y) immediately prior to such Permitted Acquisition and on a Pro Forma Basis after giving effect thereto, the Leverage Ratio of Parent shall be less than or equal to 4.50 to 1.00, as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Section 5.1(a) or (b);
(i) Investments made in accordance with Section 6.6, 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 Parent);
(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 Parent or Borrower); and
(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. For purposes of clause (c) of this Section 6.8, each of the following will be deemed Cash:
(i) any liabilities, as shown on Parent’s most recent consolidated balance sheet, of Parent 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 Parent or such Subsidiary from further liability;
(ii) any securities, notes or other obligations received by Parent or any such Subsidiary from such transferee that are converted by Parent 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 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. (a) 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-wind up or dissolve itself (or suffer any liquidation or dissolution), except (i) any Restricted Subsidiary of the Borrower may be merged or consolidated with or into the Borrower or any other Restricted Subsidiary of the Borrower (provided, that in the case of a merger or consolidation involving (A) the Borrower, then the Borrower shall be the surviving or continuing Person, (B) a Guarantor Subsidiary, then a Guarantor Subsidiary shall be the surviving or continuing Person, or (C) a wholly-owned Restricted Subsidiary, then, unless preceding sub-clause (A) or (B) applies, a wholly-owned Restricted Subsidiary shall be the surviving or continuing Person), (ii) any Restricted Subsidiary of the Borrower may be liquidated, wound up or dissolved so long as (except in the case of an Immaterial Subsidiary) if the Person being liquidated, wound up or dissolved is (A) a Credit Party, it shall have first transferred all or substantially all of its assets to another Credit Party, and (B) a wholly-owned Restricted Subsidiary, it shall have first transferred all or substantially all of its assets to a Credit Party or another wholly-owned Restricted Subsidiary and (iii) any Restricted Subsidiary of the Borrower may be merged or consolidated, or liquidated, wound up or dissolved in connection with any sale or disposition permitted pursuant to Section 6.9(b)(vii).
(b) No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, convey, sell, lease or licensesub-lease (as lessor or sub-lessor), 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 except:
(i) any sale, lease, sub-lease, transfer or licensedother disposition, in one transaction or a series of transactions, to the Borrower or any Restricted Subsidiary of the Borrower (provided, that if the transferor is (A) a Credit Party, the transferee is another Credit Party, and (B) a wholly-owned Foreign Subsidiary, the transferee is a Credit Party or another wholly-owned Foreign Subsidiary);
(ii) sales or other dispositions of assets that do not constitute Asset Sales;
(iii) disposals of obsolete, worn out or uneconomic property;
(iv) sales and other dispositions of property to the extent such property constitutes an Investment permitted by clauses (a), (c), (k), (m) and (n) of Section 6.7 provided that, in the case of such clause (a), such sales or other dispositions are at Fair Market Value and for cash received at the time of the closing of such sale or other disposition;
(v) sales and other dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business and not as part of any financing transaction or bulk sale;
(vi) sale-leaseback transactions with respect to any property (excluding Revolving Priority Collateral) (collectively, the “Permitted Sale-Leaseback Transactions”), in each case so long as (A) each such sale-leaseback transaction is an arm’s-length transaction and the Borrower or such Restricted Subsidiary, as the case may be, receives at least the Fair Market Value thereof, (B) the total consideration received by the Borrower or such Restricted Subsidiary is cash and is paid at the time of the closing of such sale, and (C) the Payment Conditions are satisfied both before and after giving effect to such Permitted Sale-Leaseback Transaction;
(vii) Asset Sales by the Borrower and its Restricted Subsidiaries (other than (x) pursuant to a sale-leaseback transaction and (y) a sale of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole), in each case so long as (A) the Payment Conditions are satisfied both before and after giving effect to such Asset Sale, (B) the consideration received for such Asset Sale shall be in an amount at least equal to the Fair Market Value of the assets subject to such Asset Sale, (C) no less than 75% of such consideration shall be paid in cash at the time of the closing of the respective Asset Sale, (D) a pro forma Borrowing Base Certificate is delivered in accordance with (but only to the extent required by) sub-clause (y) of Section 5.1(l) and (E) such Asset Sale shall not include any Capital Stock of any Restricted Subsidiary of the Borrower unless all of the Capital Stock of such Restricted Subsidiary is sold in accordance with this clause (vii); and
(viii) sales and other dispositions of accounts receivable that do not constitute Eligible Accounts, so long as (A) the aggregate amount of such sales and dispositions does not exceed $20,000,000 in any Fiscal Year and (B) 100% of the consideration shall be paid in cash at the time of the closing of the respective sale or disposition.
(c) No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials materials, supplies and equipment equipment, intellectual property, contract acquisition costs and Capital Expenditures 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:
(ai) any Subsidiary of Borrower may be merged with or into Borrower or any 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 Borrower or any Guarantor SubsidiaryPermitted Acquisitions; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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;and
(bii) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales;Investments made in accordance with Section 6.7.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter 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 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 Consolidated 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 Subsidiary of Borrower Parent (other than the Borrower) may be merged with or into the Borrower or any Guarantor Subsidiaryother Subsidiary of Parent, or 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 Parent, the Borrower or any Guarantor SubsidiarySubsidiary Guarantor; provided, provided that in the case of any such a mergertransaction, (i) the Borrower or such Guarantor SubsidiarySubsidiary Guarantor, as applicable shall be the continuing or surviving Person in any such transaction involving the Borrower and (ii) subject to the preceding clause (i) a Subsidiary Guarantor shall be the continuing or surviving Person in any such transaction involving a Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryGuarantor;
(b) salesany Subsidiary of Parent (other than the Borrower) may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to Parent, leases, licenses the Borrower or any Subsidiary Guarantor;
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(d) other Asset Sales; 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 of the Borrower (or similar governing body)), (2) no less than 75% of such consideration shall be paid in Cash, and (3) the Net Cash Proceeds thereof shall be applied as required by Section 2.12(b);
(e) disposals of obsolete, worn out or surplus property in the ordinary course of business;
(f) Permitted Acquisitions;
(g) Investments made in accordance with Section 6.06;
(h) dispositions of Cash Equivalents in the ordinary course of business;
(i) sales of whole loans for cash;
(j) the Borrower may (in one or a series of transactions) consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, the Parent, or any Subsidiary of Parent (or effect the foregoing through a reorganization or other restructuring involving one or more Subsidiaries of Parent) that is, in each case, a Wholly-Owned Subsidiary, is validly existing under the laws of the United States of America or any jurisdiction thereof, so long as:
(A) the resulting, surviving or transferee Person (the “Successor Borrower”) (x) is (or will be) licensed to perform servicing of mortgage loans and (y) will expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents;
(B) immediately after giving effect to such transaction, no Default or Event of Default would exist that shall not have been cured or waived;
(C) each Loan Party (unless it is the other party to the transactions above, in which case clause (A) shall apply) shall have by supplement to this Agreement (or by a reaffirmation agreement, which may be omnibus) confirmed that its guarantee and grant of security interests shall apply to such Person’s obligations in respect of the Loan Documents;
(D) to the extent necessary, an amendment or consent to the existing Acknowledgement Agreements have been obtained;
(E) the Borrower shall have delivered to the Administrative Agent (i) notice of such merger, conveyance, transfer or lease at least 20 days prior to such event and (ii) satisfactory “know your customer” documentation at least 10 days prior to such event to the extent reasonably requested in writing at least 15 days prior to the effectiveness of such merger, conveyance, transfer or lease;
(F) to the extent the Successor Borrower was not a Loan Party immediately prior to becoming the Successor Borrower, such Person shall have delivered to the Administrative Agent and Collateral Agent (i) a Counterpart Agreement with such changes as may be requested by or acceptable to the Administrative Agent, (ii) a Pledge Supplement to the Security Agreement or such other agreements, documents and instruments as the Administrative Agent may reasonably request in order to grant and perfect a First Priority Lien in favor of the Collateral Agent in substantially all assets of such Person (other than any assets excluded pursuant to Section 2.2 of the Security Agreement) and (iii) all such documents, instruments, agreements, and certificates as are similar to those described in Sections 3.01(b), (f) and (g), in each case, in form and substance reasonably acceptable to the Administrative Agent; and
(G) the Parent shall have delivered to the Administrative Agent a certificate of an Authorized Officer of Parent certifying compliance with the provisions of this clause (j); and
(k) Asset Sales set forth on Schedule 6.08. Upon the request of the Borrower, the Administrative Agent or Collateral Agent, as applicable, shall promptly execute and deliver to the Borrower any and all documents or instruments necessary to release any Lien encumbering any items of Collateral that are subject to a conveyance, sale, lease, exchange, transfer or other disposition pursuant to this Section 6.08 or otherwise permitted pursuant to this Agreement.
Appears in 1 contract
Samples: Amended and Restated Senior Secured Term Loan Facility Agreement (Ocwen Financial 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 merger, consolidation, amalgamation, corporate reorganization or consolidationcontinuance, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation liquidation, winding-up or dissolution), or convey, sell, lease or licensesub 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, 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, 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 directly or indirectly wholly-owned Subsidiary of Borrower Holdings may be merged or amalgamated with or into a Borrower or any a Guarantor Subsidiary that is a directly or indirectly wholly-owned Subsidiary of Holdings, in each case, organized in the same jurisdiction as such 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 a Borrower or any a Guarantor Subsidiary that is a directly or indirectly wholly-owned Subsidiary of Holdings, in each case, organized in the same jurisdiction as such Subsidiary; provided, that in the case of such a merger, such Borrower or such Guarantor Subsidiary, as applicable applicable, shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryPerson;
(b) sales, leases, licenses sales or other dispositions of assets (i) that do not constitute Asset Sales or (ii) made to a Borrower or Guarantor Subsidiary that guarantees the Obligations of such Borrower organized in the same jurisdiction as the Credit Party or Subsidiary selling or otherwise disposing of such assets;
(c) Asset Sales, the 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 same Fiscal Year, are less than $1,000,000; 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);
(d) disposals of obsolete or worn out property, the proceeds of which are less than $100,000 with respect to any such property in any single disposition or series of related dispositions and when aggregated with all other dispositions made pursuant to this clause (d) from the Closing Date to the date of determination are less than $500,000; 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 (or similar governing body) of the Credit Party making such disposition) and the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.13(a);
(e) Permitted Acquisitions;
(f) Investments made in accordance with Section 6.6;
(g) (i) sub-leases of the Real Estate Asset located at 00000 Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, and (ii) leases of up to 28,565 square feet of the Real Estate Asset located at 000 Xxxxx Xxxxxxxxx, Troy, Michigan 48084; provided, in each case that (A) the consideration received therefor shall represent not less than the fair market rental value of such Real Estate Assets (determined in good faith by the board of directors (or similar governing body) of such Person), (B) no less than one hundred percent (100%) thereof shall be paid in Cash, and (C) such sub-leases and leases are made on terms and conditions and subject to documentation that is reasonably acceptable to the Collateral Agent; and
(h) any transactions set forth in Schedule 1.1(b) necessary for the consummation of the Reorganization.
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 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, 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:
(ai) any Subsidiary of the Borrower may be merged with or into the Borrower or any Guarantor SubsidiaryGuarantor, 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 the Borrower or any Guarantor Subsidiary; (provided, in the case of such a merger, 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 Person) and (ii) any Subsidiary of Holdings which the Borrower that is not a Guarantor Subsidiary may be merged with or into any wholly-owned other Subsidiary which of the Borrower that is not a Guarantor Subsidiary, or be liquidated, wound up or dissolvedGuarantor, 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 transactions, to any wholly-owned other Subsidiary which of the Borrower that is not a Guarantor SubsidiaryGuarantor;
(b) sales, leases, licenses sales or other dispositions of assets that do not constitute Asset SalesDispositions;
(c) Dispositions, 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 Disposition or series of related Dispositions and (ii) when aggregated with the proceeds of all other Dispositions made pursuant to this clause (c) within the same fiscal year, are less than $5,000,000; 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 Borrower (or similar governing body)), (2) no less than 75% thereof shall be paid in cash and (3) the Net Cash Proceeds thereof shall be applied as required by Section 2.05(b);
(d) Permitted Transfers;
(e) Investments made in accordance with Section 8.06;
(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 Party shall, nor shall it permit any of its Subsidiaries to, enter (a) 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 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 Consolidated 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:; provided that
(a) any Subsidiary of any Borrower may be merged with or into such Borrower or any Guarantor SubsidiaryWholly-Owned Subsidiary Guarantor, or 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 any Borrower or any Guarantor SubsidiaryWholly-Owned Subsidiary Guarantor; providedprovided further, that in the case of such a merger, such Borrower or such Guarantor SubsidiaryWholly-Owned Subsidiary Guarantor, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryPerson;
(b) sales, leases, licenses any Subsidiary of any Borrower may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to such Borrower or any Wholly-Owned Subsidiary Guarantor;
(c) sales or other dispositions of assets that do not constitute Asset SalesDispositions;
(d) Asset Dispositions, 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 Dispositions made pursuant to this clause (d), are less than 10% of the Consolidated Total Assets of the Group; provided, that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the Parent), (ii) no less than 75.0% thereof shall be paid in cash, (iii) the Net Cash Proceeds thereof shall be applied as required by Section 2.14(a) and (iv) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby;
(e) If no Event of Default shall have occurred and be continuing or shall be caused thereby, (i) Receivables Sales and Project Dispositions and (ii) sales or discounts of accounts receivable, in each case with respect to this clause (ii) without recourse and in the ordinary course of business which are overdue or which a Group Member may reasonably determine are difficult to collect, but in each case only in connection with the compromise or collection thereof consistent with prudent business practice (and not as part of any bulk sale or financing of receivables);
(f) any Group Member may enter into licenses or sublicenses of software, trademarks and other Intellectual Property and general intangibles in the ordinary course of business and which do not materially interfere with the business of such Group Member and could not reasonably be expected to have a Material Adverse Effect;
(g) any sale or disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing;
(h) without limiting the application of any other provision of Article II or this Article VI, dispositions of cash and Cash Equivalents;
(i) Permitted Acquisitions;
(j) Investments made in accordance with Section 6.06;
(k) the Required Disposal; and
(l) Asset Dispositions permitted by Section 6.10.
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 licensesub 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, 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, 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) (i) any Subsidiary of Borrower Guarantor may be merged with or and into Borrower or (ii) any Guarantor Subsidiarymay be merged with and into any other Guarantor, (iii) any Subsidiary that is not a Credit Party may be merged with and into any other Subsidiary that is not a Credit Party, (iv) any Subsidiary that is not a Credit Party may be merged with and into any Credit Party, (v) the mergers consummated as part of the Reorganization Transactions shall be permitted or (vi) a Person 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 related transactions, to Borrower from a Guarantor, to a Guarantor from another Guarantor, to a Credit Party from a Subsidiary that is not a Credit Party or any Guarantor Subsidiaryto a Subsidiary that is not a Credit Party from another Subsidiary that is not a Credit Party; provided, in the case of such a merger, Borrower or Borrower, such Guarantor Subsidiary, such Credit Party or such Subsidiary that is not a Credit Party, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryPerson;
(b) sales, leases, licenses leases or other dispositions of assets that do not constitute Asset Sales;
(c) Asset Sales, the proceeds of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $2,500,000; 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 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 2.14(a);
(d) disposals of obsolete or worn out property;
(e) a condemnation or casualty event;
(f) Permitted Acquisitions;
(g) Investments made in accordance with Section 6.7;
(h) dispositions set forth on Schedule 6.9;
(i) issuances and sale of Capital Stock of Parent Entity;
(j) transactions involving Affiliated Practices conducted in the ordinary course of business consistent with past practices, and in accordance with the terms of the applicable Affiliated Practice Agreements; and
(k) dispositions permitted by Section 6.10.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Aurora Diagnostics Holdings 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 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 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:
(a1) any Subsidiary of Borrower may be merged with or into Borrower or any 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 Borrower or any Guarantor Subsidiary; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and (2) any Subsidiary of Holdings which is not a non-Guarantor Subsidiary may be merged with or into any whollyother non-owned Subsidiary which is not 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 on transaction or a series of transactions transactions, to any whollyother non-owned Subsidiary which is not a Guarantor Subsidiary;
(b) sales, leases, licenses sales or other dispositions of assets that do not constitute Asset Sales;
(c) (i) Asset Sales consisting of sales of Securitization Assets to one or more Securitization Subsidiaries in connection with a Permitted Securitization and (ii) Asset Sales (exclusive of those referenced in the preceding clause (i)), the proceeds of which are less than $75,000,000 from the Closing Date until the date of determination; 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 Holdings (or similar governing body)), (2) no less than 100% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a);
(d) sales or other dispositions of the Non-Core Real Estate Assets; 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 100% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a);
(e) disposals of obsolete, worn out or surplus property;
(f) any license of Intellectual Property in the ordinary course of business consistent with past practice, or abandonment or disposition in the ordinary course of business consistent with past practice, of Intellectual Property no longer material to the conduct of the business of Borrower and its Subsidiaries;
(g) the discount, write-off or sale of overdue accounts receivables, in each case in the ordinary course of business;
(h) (i) prior to the Exit Facility Conversion Date, Permitted Acquisitions, the cash purchase price for which constitutes less than $10,000,000 in the aggregate from the Closing Date to the date of determination; provided, in respect of acquisition targets not domiciled within the United States, the consideration for such Persons or assets shall not exceed more than $2,500,000 in the aggregate from the Closing Date to the date of determination; 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 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 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 Consolidated 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 all of beneficial ownership the Equity Interests of, any Person or any a business line or unit or a division or line of business or other business unit of of, any Person, except:: 161
(a) (i) any Subsidiary of Borrower Group Member may be merged or consolidated with or into Borrower or any Guarantor Subsidiaryother Group Member, or 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 Borrower or any Guarantor Subsidiaryother Group Member; provided, that (x) in the case of a merger or consolidation of a Group Member that is not a Loan Party with or into a Borrower or Guarantor, such a merger, Borrower or such Guarantor SubsidiaryGuarantor, as applicable applicable, shall be the continuing or surviving Person, (y) in the case of a merger or consolidation of a Guarantor with or into another Guarantor, a Guarantor shall be the continuing or surviving Person and any Subsidiary (z) in the case of Holdings which is not a merger or consolidation of a Guarantor Subsidiary may be merged with or into a Borrower, such Borrower shall be the continuing or surviving Person, and (ii) any wholly-owned Restricted Subsidiary which is not may merge with any other person in order to effect an Investment permitted pursuant to Section 6.06 so long as the continuing or surviving person shall be a Guarantor Restricted Subsidiary, or which shall be liquidated, wound up or dissolved, or all or any part a Loan Party if the merging Restricted Subsidiary was a Loan Party and which together with each of its businessRestricted Subsidiaries shall have complied with the requirements of Section 5.12, property 5.13 and 5.14, as applicable and if such transaction involves the U.S. Borrower, the U.S. Borrower shall be the continuing 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 Subsidiarysurviving Person;
(b) salesany Group Member (other than the U.S. Borrower in the case of a disposition of all of its assets) may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to a Borrower or any other Loan Party, leases, licenses and any Group Member that is not a Loan Party may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to another Group Member that is not a Loan Party;
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(i) 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 pursuant to this clause (d)(i) in any Fiscal Year, are less than (x) 2.0% of Consolidated Total Assets plus (y) an amount equal to any unutilized portion of the amount permitted under subclause (x) for any preceding Fiscal Year; provided that in no event shall the proceeds of any Asset Sale, when aggregated with the proceeds of all other Asset Sales made pursuant to this clause (d)(i) in any Fiscal Year, exceed 5.0% of Consolidated Total Assets; and (ii) the Asset Sale described on Schedule 6.08(d); provided that, in the case of each of clause (i) and (ii), (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 U.S. Borrower (or a duly authorized committee thereof)), (2) except in the case of any Asset Sale to any Restricted Subsidiary, no less than 75.0% thereof shall be paid in cash or Cash Equivalents, and (3) except in the case of any Asset Sale to any Restricted Subsidiary, the Net Cash Proceeds thereof shall be applied as required by Section 2.14(a);
(e) any Group Member may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business (x) which are overdue, or (y) which such Group Member may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with prudent business practice (and not as part of any bulk sale or financing of receivables);
(f) any Group Member may enter into licenses or sublicenses of Software, Trademarks and other Intellectual Property and general intangibles in the ordinary course of business and which do not materially interfere with the business of the Group Members taken as a whole;
(g) (i) any disposition of Securitization Assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing and (ii) any disposition of accounts receivable in connection with receivables factoring arrangements in the ordinary course of business;
(h) dispositions of cash and Cash Equivalents;
(i) Permitted Acquisitions; provided, that in respect of acquisitions of Persons which do not become Loan Parties or of assets which are not acquired by Loan Parties, the consideration for such Persons or assets shall not exceed an aggregate amount of 5.0% of Consolidated Total Assets over the term of this Agreement; and
(j) (i) Permitted Sale and Lease-Backs and (ii) Sale and Lease-Backs otherwise permitted by Section 6.10(ii), provided that the Net Cash Proceeds of Sale and Lease-Backs (other than Permitted Sale and Lease-Backs) shall be applied as required by Section 2.14(a); provided, further, that, in the case of clause (ii), the net proceeds received by the applicable Group Member are at least equal to the fair market value of such asset or Investment (as determined by the U.S. Borrower’s Board of Directors (or a duly authorized committee thereof));
(k) sales or other dispositions of the Equity Interests of, or other ownership interests in or assets or property, including Indebtedness, or other securities of, any Joint Venture (including the China JV); provided that, in each case, the net proceeds received by the applicable Group Member are at least equal to the fair market value of such asset or Investment (as determined by the U.S. Borrower’s Board of Directors (or a duly authorized committee thereof));
(l) any lease, assignment or sublease in the ordinary course of business which does not materially interfere with the business of the Group Members taken as a whole; and
(m) Investments made in accordance with Section 6.06 and Restricted Payments made in accordance with Section 6.04.
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 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 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:
(a1) any Subsidiary of Borrower may be merged with or into Borrower or any 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 Borrower or any Guarantor Subsidiary; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and (2) any Subsidiary of Holdings which is not a non-Guarantor Subsidiary may be merged with or into any whollyother non-owned Subsidiary which is not 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 on transaction or a series of transactions transactions, to any whollyother non-owned Subsidiary which is not a Guarantor Subsidiary;
(b) sales, leases, licenses sales or other dispositions of assets that do not constitute Asset Sales;
(c) (i) Asset Sales consisting of sales of Securitization Assets to one or more Securitization Subsidiaries in connection with a Permitted Securitization and (ii) Asset Sales (exclusive of those referenced in the preceding clause (i)), the proceeds of which are less than $75,000,000 from the Closing Date until the date of determination; 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 Holdings (or similar governing body)), (2) no less than 100% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a);
(d) sales or other dispositions of the Non-Core Real Estate Assets; 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 100% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.11(a);
(e) disposals of obsolete, worn out or surplus property;
(f) any license of Intellectual Property in the ordinary course of business consistent with past practice, or abandonment or disposition in the ordinary course of business consistent with past practice, of Intellectual Property no longer material to the conduct of the business of Borrower and its Subsidiaries;
(g) the discount, write-off or sale of overdue accounts receivables, in each case in the ordinary course of business;
(h) (i) prior to the Exit Facility Conversion Date, Permitted Acquisitions, the cash purchase price for which constitutes less than $10,000,000 in the aggregate from the Closing Date to the date of determination; provided, in respect of acquisition targets not domiciled within the United States, the consideration for such Persons or assets shall not exceed more than $2,500,000 in the aggregate from the Closing Date to the date of determination; and
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. (a) 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-wind up or dissolve itself (or suffer any liquidation or dissolution), except (i) any Restricted Subsidiary of the Borrower may be merged or consolidated with or into the Borrower or any other Restricted Subsidiary of the Borrower (provided, that in the case of a merger or consolidation involving (A) the Borrower, then the Borrower shall be the surviving or continuing Person, (B) a Guarantor Subsidiary, then a Guarantor Subsidiary shall be the surviving or continuing Person, or (C) a wholly-owned Restricted Subsidiary, then, unless preceding sub-clause (A) or (B) applies, a wholly-owned Restricted Subsidiary shall be the surviving or continuing Person), (ii) any Restricted Subsidiary of the Borrower may be liquidated, wound up or dissolved so long as (except in the case of an Immaterial Subsidiary) if the Person being liquidated, wound up or dissolved is (A) a Credit Party, it shall have first transferred all or substantially all of its assets to another Credit Party, and (B) a wholly-owned Restricted Subsidiary, it shall have first transferred all or substantially all of its assets to a Credit Party or another wholly-owned Restricted Subsidiary and (iii) any Restricted Subsidiary of the Borrower may be merged or consolidated, or liquidated, wound up or dissolved in connection with any sale or disposition permitted pursuant to Section 6.9(b)(vii).
(b) No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, convey, sell, lease or licensesub-lease (as lessor or sub-lessor), 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 except:
(i) any sale, lease, sub-lease, transfer or licensedother disposition, in one transaction or a series of transactions, to the Borrower or any Restricted Subsidiary of the Borrower (provided, that if the transferor is (A) a Credit Party, the transferee is another Credit Party, and (B) a wholly-owned Foreign Subsidiary, the transferee is a Credit Party or another wholly-owned Foreign Subsidiary);
(ii) sales or other dispositions of assets that do not constitute Asset Sales;
(iii) disposals of obsolete, worn out or uneconomic property;
(iv) sales and other dispositions of property to the extent such property constitutes an Investment permitted by clauses (a), (c), (k), (m) and (n) of Section 6.7 provided that, in the case of such clause (a), such sales or other dispositions are at Fair Market Value and for cash received at the time of the closing of such sale or other disposition;
(v) sales and other dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business and not as part of any financing transaction or bulk sale;
(vi) sale-leaseback transactions with respect to any property (collectively, the “Permitted Sale-Leaseback Transactions”), in each case so long as (A) each such sale-leaseback transaction is an arm’s-length transaction and the Borrower or such Restricted Subsidiary, as the case may be, receives at least the Fair Market Value thereof, (B) the total consideration received by the Borrower or such Restricted Subsidiary is cash and is paid at the time of the closing of such sale, and (C) the Payment Conditions are satisfied both before and after giving effect to such Permitted Sale-Leaseback Transaction;
(vii) Asset Sales by the Borrower and its Restricted Subsidiaries (other than (x) pursuant to a sale-leaseback transaction and (y) a sale of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole), in each case so long as (A) the Payment Conditions are satisfied both before and after giving effect to such Asset Sale, (B) the consideration received for such Asset Sale shall be in an amount at least equal to the Fair Market Value of the assets subject to such Asset Sale, (C) no less than 75% of such consideration shall be paid in cash at the time of the closing of the respective Asset Sale, (D) a pro forma Borrowing Base Certificate is delivered in accordance with (but only to the extent required by) sub-clause (y) of Section 5.1(l) and (E) such Asset Sale shall not include any Capital Stock of any Restricted Subsidiary of the Borrower unless all of the Capital Stock of such Restricted Subsidiary is sold in accordance with this clause (vii); and
(viii) sales and other dispositions of accounts receivable that do not constitute Eligible Accounts as a result of clause (ii) of the definition thereof, so long as (A) the aggregate amount of such sales and dispositions does not exceed $10,000,000 in any Fiscal Year and (B) 100% of the consideration shall be paid in cash at the time of the closing of the respective sale or disposition.
(c) No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials materials, supplies and equipment equipment, intellectual property, contract acquisition costs and Capital Expenditures 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:
(ai) any Subsidiary of Borrower may be merged with or into Borrower or any 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 Borrower or any Guarantor SubsidiaryPermitted Acquisitions; provided, in the case of such a merger, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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;and
(bii) sales, leases, licenses or other dispositions of assets that do not constitute Asset Sales;Investments made in accordance with Section 6.7.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter 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 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, 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 Subsidiary of Borrower Guarantor may be merged with or into the Borrower or any Guarantor SubsidiarySolvent Wholly Owned Subsidiary Guarantor, or 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 the Borrower or any Guarantor SubsidiarySolvent Wholly Owned Subsidiary Guarantor; provided, that in the case of such a merger, the Borrower or such Guarantor SubsidiarySolvent Wholly Owned Subsidiary Guarantor, as applicable shall be the continuing or surviving Person and any Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryPerson;
(b) sales, leases, licenses any Subsidiary of the Borrower may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Solvent Wholly Owned Subsidiary Guarantor;
(c) sales or other dispositions of assets that do not constitute Asset Sales, including, without limitation, any non-exclusive outbound licenses of patents, copyrights, trademarks and other intellectual property rights granted by the Borrower or any Subsidiary Guarantor in the ordinary course of business and not interfering in any respect with the ordinary conduct of or materially detracting from the value of the business of the Borrower or such Subsidiary Guarantor;
(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) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $2,000,000; provided, that (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the Borrower (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 required by Section 2.12(a);
(e) disposals of obsolete, worn out or surplus property;
(f) Permitted Acquisitions; and
(g) Restricted Payments made in accordance with Section 6.04, Investments made in accordance with Section 6.06, and dispositions of Equity Interests made in accordance with Section 6.09.
Appears in 1 contract
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter 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 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 Consolidated 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 Subsidiary of Borrower Parent (other than the Borrower) may be merged with or into the Borrower or any Guarantor Subsidiaryother Subsidiary of Parent, or 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 Parent, the Borrower or any Guarantor SubsidiarySubsidiary Guarantor; provided, provided that in the case of any such a mergertransaction, (i) the Borrower or such Guarantor SubsidiarySubsidiary Guarantor, as applicable shall be the continuing or surviving Person in any such transaction involving the Borrower and (ii) subject to the preceding clause (i) a Subsidiary Guarantor shall be the continuing or surviving Person in any such transaction involving a Subsidiary of Holdings which is not a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not 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 SubsidiaryGuarantor;
(b) salesany Subsidiary of Parent (other than the Borrower) may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to Parent, leases, licenses the Borrower or any Subsidiary Guarantor;
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(d) other Asset Sales; 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 of the Borrower (or similar governing body)), (2) no less than 75% of such consideration shall be paid in Cash, and (3) the Net Cash Proceeds thereof shall be applied as required by Section 2.12(b);
(e) disposals of obsolete, worn out or surplus property in the ordinary course of business;
(f) Permitted Acquisitions;
(g) Investments made in accordance with Section 6.06;
(h) dispositions of Cash Equivalents in the ordinary course of business;
(i) sales of whole loans for cash;
(j) [reserved]; and
(k) Asset Sales set forth on Schedule 6.08. Upon the request of the Borrower, the Administrative Agent or Collateral Agent, as applicable, shall promptly execute and deliver to the Borrower any and all documents or instruments necessary to release any Lien encumbering any items of Collateral that are subject to a conveyance, sale, lease, exchange, transfer or other disposition pursuant to this Section 6.08 or otherwise permitted pursuant to this Agreement.
Appears in 1 contract
Samples: Senior Secured Term Loan Facility Agreement (Ocwen Financial 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 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 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 - 117 - 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, or all or substantially all of the 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 Subsidiary of Borrower may be merged (i) merged, amalgamated or consolidated with or merged, amalgamated or consolidated into Borrower or any Guarantor Subsidiary, or 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 Borrower or any Guarantor SubsidiaryBorrower; provided, provided that (A) in the case of such a merger, amalgamation or consolidation involving Borrower, Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person or a Person that continues as a merged, amalgamated or consolidated corporation and (B) in the case of such a merger, amalgamation or consolidation involving any other Guarantor (and not involving Borrower), the surviving Person, or a Person that continues as a merged, amalgamated or consolidated corporation, shall be a Guarantor; provided further that, in the case of this clause (B), solely for the purpose of internal corporate tax restructuring, it is understood that any Guarantor may merge, amalgamate or consolidate with a non-Guarantor Subsidiary of Holdings which is not so long as (x) such non-Guarantor Subsidiary merges, amalgamates or consolidates with the Borrower or a Guarantor Subsidiary may be merged with or into any wholly-owned Subsidiary which is not a Guarantor Subsidiarysubstantially simultaneous with, or be no longer than one Business Day after the internal merger, amalgamation or consolidation involving a Guarantor, with the surviving person, or the Person that continues as a merged, amalgamated or consolidated corporation from such subsequent merger, amalgamation or consolidation being the Borrower or a Guarantor, and (y) the Borrower shall certify to the Administrative Agent on the date of any such merger, amalgamation or consolidation that such merger, amalgamation or consolidation shall comply with this Section 6.8(a), or (ii) other than with respect to Borrower, reorganized, liquidated, wound up or dissolveddissolved if Borrower determines in good faith that such reorganization, liquidation, winding up or all or any part dissolution is in the best interest 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 Borrower and is not a Guarantor Subsidiary;
materially disadvantageous to the Lenders; (b) sales, leases, licenses sales or other dispositions of assets or property that do not constitute Asset Sales;Sales (which sales or other dispositions may take the form of a merger, amalgamation or similar transaction); (c) Asset Sales (which Asset Sale may take the form of a merger, amalgamation or similar transaction); 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 of 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 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a); (d) 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) Specified Asset Disposition; provided that the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a); (g) Asset 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) 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 by Persons that are not Credit Parties 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 - 118 -
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
