Common use of Fundamental Changes; Disposition of Assets; Acquisitions Clause in Contracts

Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any Acquisition or transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or make any Asset Sale, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory and materials and the acquisition of equipment and capital expenditures in the ordinary course of business) the business, property or fixed assets of, or Equity Interests 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 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 such Borrower or any other Subsidiary; provided, in the case of such a merger, (i) if any Borrower is party to the merger, such Borrower shall be the continuing or surviving Person and (ii) if any Guarantor is a party to such merger, then a Guarantor shall be the continuing or surviving Person; (b) Asset Sales the proceeds of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed $10,000,000; (c) the sale of Marketable Securities for cash or other Marketable Securities; and (d) Investments made in accordance with Section 8.6.

Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any Acquisition or transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or make any Asset Sale, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory and materials and the acquisition of equipment and capital expenditures in the ordinary course of business, subject to Section 7.9) the business, property or fixed assets of, or Equity Interests 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 the Company may be merged with or into such Borrower the Company 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 such Borrower the Company or any other Subsidiary; provided, in the case of such a merger, the Company (i) if any Borrower the Company is a party to the such merger, such Borrower ) shall be the continuing or surviving Person and Person, or a Credit Party (ii) if any Guarantor a Credit Party other than the Company is a party to such merger, then a Guarantor ) shall be the continuing or surviving Person; (b) Asset Sales Sales, the proceeds of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed $10,000,000; 25,000,000; provided (c1) the sale 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 Marketable Securities for cash directors of the applicable Credit Party (or other Marketable Securitiessimilar governing body)), and (2) no less than eighty percent (80%) of such proceeds shall be paid in cash; and (dc) Investments made in accordance with Section 8.67.6.

Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any Acquisition or transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or make any Asset Sale, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory and materials and the acquisition of equipment and capital expenditures in the ordinary course of business) the business, property or fixed assets of, or Equity Interests 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 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 such Borrower or any other Subsidiary; provided, in the case of such a merger, (i) if any Borrower is party to the merger, such Borrower shall be the continuing or surviving Person and (ii) if any Guarantor is a party to such merger, then a Guarantor shall be the continuing or surviving Person; (b) Asset Sales the proceeds of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed $10,000,000; (c) the sale of Marketable Securities for cash or other Marketable Securities; and (d) Investments made in accordance with Section 8.6.

Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any Acquisition or transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or make any Asset Sale, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory and materials and the acquisition of equipment and capital expenditures in the ordinary course of business) the business, property or fixed assets of, or Equity Interests 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 the Borrower may be merged with or into such the 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 such the Borrower or any other Subsidiary; provided, in the case of such a merger, the Borrower (i) if any the Borrower is a party to the such merger, such Borrower ) shall be the continuing or surviving Person and Person, or a Credit Party (ii) if any Guarantor a Credit Party other than the Borrower is a party to such merger, then a Guarantor ) shall be the continuing or surviving Person; (b) Asset Sales Sales, the proceeds of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed $10,000,000; 25,000,000; provided, in the case of any Asset Sale (cor series of related Asset Sales) in excess of $3,500,000, (i) the sale 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 Marketable Securities for cash directors of the applicable Credit Party (or other Marketable Securitiessimilar governing body)), and (ii) no less than seventy-five percent (75%) of such proceeds shall be paid in cash; and (dc) Investments made in accordance with Section 8.67.6.

Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any Acquisition or transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or make any Asset Sale, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory and materials and the acquisition of equipment and capital expenditures in the ordinary course of business) the business, property or fixed assets of, or Equity Interests 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 the Borrower may be merged with or into such the Borrower or any other Subsidiaryof its Subsidiaries, 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 such the Borrower or any other Subsidiary; provided, in the case of such a merger, (i) if any the Borrower is party to the merger, such the Borrower shall be the continuing or surviving Person and (ii) if any Guarantor is a party to such merger, then a Guarantor shall be the continuing or surviving Person; (b) Asset Sales Sales, (i) the proceeds of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed $10,000,0005,000,000; 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 applicable Credit Party (or similar governing body)), and (2) such proceeds shall be paid in cash; (c) any disposition of property to any Credit Party or any Subsidiary of any Credit Party; provided, that, if the sale transferor of Marketable Securities for cash or other Marketable Securitiessuch property is a Credit Party the transferee thereof must be a Credit Party; and (d) Investments made in accordance with Section 8.68.5.

Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit permit, any of its Subsidiaries to, enter into any Acquisition or transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or make convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any Asset Salepart of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory and inventory, materials and the acquisition of equipment and capital expenditures in the ordinary course of business) the business, property or fixed assets of, or Equity Interests 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 other SubsidiaryBorrower, 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 such Borrower or any other SubsidiaryBorrower; provided, in the case of such a merger, (i) if any Borrower is party to the merger, such Borrower shall be the continuing or surviving Person and (ii) if any Guarantor is a party to such merger, then a Guarantor Borrowers shall be the continuing or surviving Person; (b) Asset Sales the proceeds disposals of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Yearobsolete, do not exceed $10,000,000worn-out or surplus property; (c) the sale of Marketable Securities for cash or other Marketable Securities; and (d) Investments made in accordance with Section 8.66.5; (d) disposals of other property and assets for cash in the aggregate amount not less than fair market value of such property and assets provided that the net cash proceeds of such other dispositions do not exceed $100,000 in the aggregate in any twelve (12) month period; and (e) entering into software licensing agreements in the ordinary course of business consistent with past practices of Borrowers and their Subsidiaries.

Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any Acquisition or transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or make convey, sell, lease or sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any Asset Salepart of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory and inventory, materials and the acquisition of equipment and capital expenditures Consolidated Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or Equity Interests 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 Credit Party or any Subsidiary of any Borrower Credit Party may be merged with or into any other Credit Party or any Person that becomes a Credit Party in connection therewith, 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 Credit Party or any Person that becomes a Credit Party in connection therewith; provided, in the case of such Borrower a merger, any Credit Party or any Person that becomes a Credit Party in connection therewith shall be the continuing or surviving Person or, in the case of the Company, Company shall be the continuing or surviving Person; (b) sales or other dispositions of assets that do not constitute Asset Sales; (c) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds) (i) are less than $1,000,000 with respect to any single Asset Sale or series of related Asset Sales and (ii) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $2,000,000; provided, notwithstanding clauses (i) and (ii) above, so long as no Default or Event of Default exists or would occur as a result of such Asset Sale, Company may request and Administrative Agent may consent (in its sole discretion), no more than four times during the term of this Agreement, to Asset Sales which are in excess of the amounts in clauses (i) and (ii) above but less than $5,000,000; provided, further, (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 such Credit Party (or similar governing body)), (2) no less than 80% 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, worn out or surplus property; (e) subject to pro forma compliance with a Leverage Ratio which is 25x more restrictive than the then-applicable Leverage Ratio under Section 6.8(c) at such date of determination, Permitted Acquisitions the consideration for which constitutes the sum of (i) an amount in Cash (including (i) borrowings of Revolving Loans and New Term Loans and (ii) up to $20,000,000 of Consolidated Excess Cash Flow) not to exceed $30,000,000 in the aggregate in any Fiscal Year; provided, that the Company shall retain a balance of $5,000,000 of any combination of unencumbered Cash (other than security interests pursuant to any Credit Document and Permitted Liens) and availability under the Revolving Commitments, plus (ii) an aggregate amount not to exceed $30,000,000 per Fiscal Year of the Capital Stock or the net cash proceeds from the issuance of equity of Holdings, DTN Leasing or any of its or their Subsidiaries; provided, such amount with respect to this clause (ii) for any Fiscal Year shall be increased by an amount equal to the excess of such amount for the previous Fiscal Year (including any Fiscal Year prior to the Effective Date but without giving any effect to any carryover into such previous Fiscal Year pursuant to this clause (ii)) over the actual amount of Permitted Acquisitions using the Capital Stock or the net cash proceeds from the issuance of equity of Holdings, DTN Leasing or any of its or their Subsidiaries for such previous Fiscal Year, plus (iii) an amount equal to the excess Maximum Consolidated Capital Expenditures for the previous Fiscal Year (including any Fiscal Year prior to the Effective Date, including any carryover amount permitted pursuant to Section 6.8(d), over the Consolidated Capital Expenditures for such Fiscal Year, plus (iv) the proceeds of any Non-Controlling Equity Sales to the extent not utilized for Consolidated Capital Expenditures; (f) leases or sub-leases in the ordinary course of business of any Credit Party or any Subsidiary of any Credit Party; (g) Investments made in accordance with Section 6.7; (h) Sale and lease-back transactions permitted pursuant to Section 6.11; (i) Company may sell the Capital Stock of iTradeNetwork, Inc. and SpeedNet Services, LLC; and (j) DTN Leasing or any Subsidiary of DTN Leasing may be merged with or into DTN Leasing or any other SubsidiarySubsidiary of DTN Leasing, 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 such Borrower DTN Leasing or any Subsidiary of DTN Leasing. Transactions permitted pursuant to one of the above subsections shall not be included in determining the limitation contained in any other Subsidiary; provided, in the case subsection of such a merger, (i) if any Borrower is party to the merger, such Borrower shall be the continuing or surviving Person and (ii) if any Guarantor is a party to such merger, then a Guarantor shall be the continuing or surviving Person; (b) Asset Sales the proceeds of which when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed $10,000,000; (c) the sale of Marketable Securities for cash or other Marketable Securities; and (d) Investments made in accordance with this Section 8.66.9.