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, 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 U.S. Subsidiary of U.S. Holdings or a U.S. Guarantor may be merged with or into U.S. Borrower or any U.S. 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 U.S. Borrower or any U.S. Guarantor; provided, in the case of such a merger, U.S. Borrower, or such U.S. Guarantor, as applicable, shall be the continuing or surviving Person and any Non-U.S. Subsidiary of Holdings may be merged with or into European Borrower or with or into any Non-U.S. Guarantor, 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 European Borrower or to any Non-U.S. Guarantor; provided, (1) a European Borrower or the Non-U.S. Guarantor, as the case may be, shall be the continuing, surviving or succeeding Person, or the transferee of the relevant business, property or assets, as the case may be, and (2) immediately after such transaction, the continuing, surviving or succeeding Person(s) or the transferee(s) shall (A) collectively, have a net worth (calculated on a pro forma basis) at least equal to the aggregate net worth of the European Borrower or Non-U.S. Guarantor, as applicable, immediately prior thereto and (B) either (i) have freely distributable reserves at least equal to the aggregate of the freely distributable reserves of such European Borrower or Non-U.S. Guarantor, as applicable, immediately prior thereto, or (ii) be liable without limitation in respect of its Obligations, as applicable, as a Borrower and/or Guarantor hereunder; (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) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $10,000,000; 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 Holdings (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, worn out or surplus property; (e) Permitted Acquisitions, provided that the consideration for such acquisitions (other than the acquisition by a Credit Party of all of the economic and voting Equity Interests of the Specified Target) shall constitute (i) less than $50,000,000 in the aggregate in any Fiscal Year, and (ii) less than $150,000,000 in the aggregate from the Closing Date to the date of determination; (f) Investments made in accordance with Section 6.6; (g) sales, assignments, leases, licenses, transfers, abandonment, cancellation or other dispositions of current or future assets (including without limitation Intellectual Property), in the ordinary course of business, consistent with the practices of the Credit Parties or any of their Subsidiaries prior to the date hereof; and (h) the transactions described in Section 5.16.
Appears in 2 contracts
Samples: First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.), First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.)
Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and capital expenditures Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any U.S. Domestic Subsidiary of U.S. Holdings Borrower or a U.S. Domestic Guarantor may be merged with or into U.S. Borrower or any U.S. Domestic 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 U.S. Borrower or any U.S. Domestic Guarantor; provided, in the case of such a merger, U.S. Borrower, or such U.S. Domestic Guarantor, as applicable, shall be the continuing or surviving Person and (ii) any Non-U.S. Foreign Subsidiary of Holdings may be merged with or into European either Euro Borrower or with or into any Non-U.S. GuarantorForeign Guarantor and, any Euro Borrower into any other Euro Borrower, 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 European Euro Borrower or to any Non-U.S. Foreign Guarantor; provided, (1) a European Euro Borrower or the Non-U.S. Foreign Guarantor, as the case may be, shall be the continuing, surviving or succeeding Person, or the transferee of the relevant business, property or assets, as the case may be, and (2) immediately after such transaction, the continuing, surviving or succeeding Person(s) or the transferee(s) shall (A) collectively, have a net worth (calculated on a pro forma basis) at least equal to the aggregate net worth of the European Foreign Subsidiary and Euro Borrower or Non-U.S. Foreign Guarantor, as applicable, immediately prior thereto and (B) either (i) have freely distributable reserves at least equal to the aggregate of the freely distributable reserves of such European Foreign Subsidiary and Euro Borrower or Non-U.S. Foreign Guarantor, as applicable, immediately prior thereto, or (ii) be liable without limitation (including as to enforceability, subject to the Reservations) in respect of its Obligations, as applicable, as a Borrower and/or Guarantor hereunder;
(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) are less than $15,000,000 when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $10,000,000; 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 Holdings (or similar governing body)), (2) no less than 7585% 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) sales or liquidations of Cash Equivalents in the ordinary course of business;
(f) Permitted Acquisitions;
(g) disposals of machinery or equipment which will be replaced or upgraded with machinery or equipment used or useful in the ordinary course of business;
(h) the lease, as lessor or sublessor, or license, as licensor or sublicensor, of real or personal property or Intellectual Property in the ordinary course of business; provided that with respect to any such leases or licenses made on an exclusive basis, to the consideration for such acquisitions (other than extent the acquisition by a Credit Party of all aggregate amount of the economic and voting Equity Interests present value payment stream (based on a reasonable good faith calculation of Holdings) received by Holdings or any of its Subsidiaries with respect to each such exclusive lease or license is in excess of $7,500,000, such excess amount shall be applied to prepay the Specified Target) shall constitute Loans pursuant to Section 2.14(a);
(i) less than $50,000,000 write-off, discount, sell or otherwise dispose of defaulted or past due receivables and similar obligations in the aggregate ordinary course of business;
(j) issue Capital Stock to qualify directors of the board of directors (or similar governing body) of Holdings or any of its Subsidiaries where required by applicable law or to satisfy other requirements of applicable law with respect to the ownership of Capital Stock in any Fiscal YearForeign Subsidiaries or nominal shares for tax considerations;
(k) to the extent the proceeds are applied in accordance with Section 2.14(a), (i) sales of non-core, duplicative or unnecessary assets acquired in Permitted Acquisitions and (ii) less than $150,000,000 in the aggregate from the Closing Date to the date sales of determinationExcluded Subsidiaries;
(fl) the sale of the UK property being located at Xxxxx XX, Xxxxxxx Xxxx, Xxxxxx, XX; and
(m) Investments made in accordance with Section 6.6;
(g) sales, assignments, leases, licenses, transfers, abandonment, cancellation or other dispositions of current or future assets (including without limitation Intellectual Property), in the ordinary course of business, consistent with the practices of the Credit Parties or any of their Subsidiaries prior to the date hereof; and
(h) the transactions described in Section 5.166.7.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Solera 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, leased or licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and capital expenditures Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:
(a) (i) any U.S. Domestic Subsidiary of the U.S. Holdings Borrower or a U.S. Domestic Guarantor may be merged with or into the U.S. Borrower or any U.S. Domestic 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 the U.S. Borrower or any U.S. Domestic Guarantor; provided, in the case of such a merger, the U.S. Borrower, or such U.S. Domestic Guarantor, as applicable, shall be the continuing or surviving Person and (ii) any Non-U.S. Foreign Subsidiary of Holdings may be merged with or into European either Euro Borrower or with or into any Non-U.S. GuarantorForeign Guarantor and, any Euro Borrower into any other Euro Borrower, 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 European Euro Borrower or to any Non-U.S. Foreign Guarantor; provided, (1) a European Euro Borrower or the Non-U.S. Foreign Guarantor, as the case may be, shall be the continuing, surviving or succeeding Person, or the transferee of the relevant business, property or assets, as the case may be, and (2) immediately after such transaction, the continuing, surviving or succeeding Person(s) or the transferee(s) shall (A) collectively, have a net worth (calculated on a pro forma basis) at least equal to the aggregate net worth of the European Foreign Subsidiary and Euro Borrower or Non-U.S. Foreign Guarantor, as applicable, immediately prior thereto and (B) either (i) have freely distributable reserves at least equal to the aggregate of the freely distributable reserves of such European Foreign Subsidiary and Euro Borrower or Non-U.S. Foreign Guarantor, as applicable, immediately prior thereto, or (ii) be liable without limitation (including as to enforceability, subject to the Reservations) in respect of its Obligations, as applicable, as a Borrower and/or Guarantor hereunder;
(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) are less than $15,000,000 when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than $10,000,000; provided 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 7585% 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) sales or liquidations of Cash Equivalents in the ordinary course of business;
(f) Permitted Acquisitions;
(g) disposals of machinery or equipment which will be replaced or upgraded with machinery or equipment used or useful in the ordinary course of business;
(h) the lease, as lessor or sublessor, or license, as licensor or sublicensor, of real or personal property or Intellectual Property in the ordinary course of business; provided that with respect to any such leases or licenses made on an exclusive basis, to the consideration for such acquisitions (other than extent the acquisition by a Credit Party of all aggregate amount of the economic and voting Equity Interests present value payment stream (based on a reasonable good faith calculation of Holdings) received by Holdings or any of its Subsidiaries with respect to each such exclusive lease or license is in excess of $7,500,000, such excess amount shall be applied to prepay the Specified Target) shall constitute Loans pursuant to Section 2.14(a);
(i) less than $50,000,000 write-off, discount, sell or otherwise dispose of defaulted or past due receivables and similar obligations in the aggregate ordinary course of business;
(j) issue Capital Stock to qualify directors of the board of directors (or similar governing body) of Holdings or any of its Subsidiaries where required by applicable law or to satisfy other requirements of applicable law with respect to the ownership of Capital Stock in any Fiscal YearForeign Subsidiaries or nominal shares for tax considerations;
(k) to the extent the proceeds are applied in accordance with Section 2.14(a), (i) sales of non-core, duplicative or unnecessary assets acquired in Permitted Acquisitions and (ii) less than $150,000,000 in the aggregate from the Closing Date to the date sales of determinationExcluded Subsidiaries;
(fl) the sale of the UK property being located at Xxxxx XX, Xxxxxxx Xxxx, Xxxxxx, XX; and
(m) Investments made in accordance with Section 6.6;
(g) sales, assignments, leases, licenses, transfers, abandonment, cancellation or other dispositions of current or future assets (including without limitation Intellectual Property), in the ordinary course of business, consistent with the practices of the Credit Parties or any of their Subsidiaries prior to the date hereof; and
(h) the transactions described in Section 5.166.7.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Solera Holdings, 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 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 the Acquisition, purchases or other acquisitions of inventory, materials and equipment and capital expenditures Consolidated Capital Expenditures in the ordinary course of business) all or substantially all of the business, 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 U.S. Subsidiary of U.S. Holdings or a U.S. Guarantor Group Member may be merged or consolidated with or into U.S. Borrower or any U.S. Guarantor, as the case may beother 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 U.S. Borrower or any U.S. Guarantorother Group Member; provided, that (w) in the case of a merger or consolidation of a Group Member that is not a Loan Party with or into a Borrower or any Guarantor, such a merger, U.S. Borrower, Borrower or such U.S. Guarantor, as applicable, shall be the continuing or surviving Person and any Non-U.S. Subsidiary Person, (x) in the case of Holdings may be merged a merger or consolidation of a Guarantor with or into European Borrower a U.S. Guarantor, a U.S. Guarantor shall be the continuing or surviving Person, (y) in the case of a merger or consolidation of any Loan Party with or into any Non-the U.S. GuarantorBorrower, 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 European the U.S. Borrower or to any Non-U.S. Guarantor; provided, (1) a European Borrower or the Non-U.S. Guarantor, as the case may be, shall be the continuing, continuing or surviving Person and (z) in the case of a merger or succeeding Person, or the transferee consolidation of the relevant businessEuropean Guarantor with or into the European Borrower, property the European Borrower shall be the continuing or assets, as the case may besurviving Person, and (2ii) immediately after such transactionany Restricted NY\6180200.13 Subsidiary 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 Restricted Subsidiary, the continuing, surviving which shall be a U.S. Loan Party or succeeding Person(s) or the transferee(s) shall (A) collectively, have a net worth (calculated on a pro forma basis) at least equal to the aggregate net worth of the European Borrower or Non-U.S. GuarantorLoan Party, as applicable, immediately prior thereto if the merging Restricted Subsidiary was a U.S. Loan Party or a European Loan Party, and which, if such transaction involves a U.S. Loan Party, together with each of its Restricted Subsidiaries, shall have complied with the requirements of Sections 5.11, 5.12 and 5.13, as applicable and if such transaction involves (x) the U.S. Borrower, the U.S. Borrower shall be the continuing or surviving Person and (By) either a U.S. Guarantor (but not the U.S. Borrower), a U.S. Guarantor shall be the continuing or surviving Person;
(i) have freely distributable reserves at least equal any 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 the aggregate of the freely distributable reserves of such European U.S. Borrower or Non-any U.S. Guarantor, as applicable, immediately prior thereto, or ; (ii) be liable without limitation any Group Member that is a Foreign Subsidiary (other than the European Borrower in respect the case of a disposition of all its assets) may dispose of any or all of its Obligations, as applicable, as assets (upon voluntary liquidation or otherwise) to any other Group Member and (iii) any Group Member that is not a Borrower and/or Guarantor hereunderLoan 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;
(bc) (i) sales or other dispositions of assets that do not constitute Asset SalesSales and (ii) transactions undertaken among the U.S. Borrower and its Restricted Subsidiaries as part of the Post-Closing Restructuring Transactions;
(cd) (i) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same pursuant to this clause (i) in any Fiscal Year, are less than $10,000,000(x) 2.0% of Consolidated Total Assets plus (y) an amount equal to any unutilized portion of the amount permitted under clause (i)(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 (i) in any Fiscal Year, exceed 5.0% of Consolidated Total Assets; and (ii) certain Asset Sales described by the Borrower Representative in a written notice to the Administrative Agent on or prior to the Closing Date; provided that, in the case of each of clauses (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 Board of directors Directors of Holdings the U.S. Borrower (or similar governing bodya duly authorized committee thereof)), (2) except in the case of any Asset Sale to any Restricted Subsidiary, no less than 7575.0% thereof shall be paid in Cash, cash or Cash Equivalents and (3) except in the case of any Asset Sale to any Restricted Subsidiary, the Net Asset Sale Cash Proceeds thereof shall be applied as required by Section 2.14(a);
(de) disposals any Group Member may sell or discount, in each case without recourse and in the ordinary course of obsoletebusiness, worn out accounts receivable arising in the ordinary course of business (x) which are overdue, or surplus property(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);
(ef) Permitted Acquisitionsany Group Member may enter into licenses or sublicenses of Software, provided that Trademarks and other Intellectual Property and general intangibles in the consideration for such acquisitions (other than ordinary course of business and which do not materially interfere with the acquisition by a Credit Party of all business of the economic and voting Equity Interests of the Specified TargetGroup Members taken as a whole; NY\6180200.13
(g) shall constitute (i) less than $50,000,000 any disposition of Securitization Assets to a Securitization Subsidiary in the aggregate in any Fiscal Year, connection with a Qualified Securitization Financing and (ii) less than $150,000,000 any disposition of accounts receivable in connection with receivables factoring arrangements in the aggregate from the Closing Date to the date ordinary course of determinationbusiness;
(fh) dispositions of cash and Cash Equivalents;
(i) Permitted Acquisitions; provided, that the consideration in respect of such Permitted Acquisitions of Persons that do not become U.S. Loan Parties, or of assets that are not acquired by U.S. Loan Parties, which consideration is funded directly or indirectly with Investments by U.S. Loan Parties, shall not exceed an aggregate amount of 5.0% of Consolidated Total Assets (determined at the time of such Permitted Acquisition) over the term of this Agreement;
(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 6.6;
(g) sales, assignments, leases, licenses, transfers, abandonment, cancellation or other dispositions of current or future assets (including without limitation Intellectual Property), 6.06 and Restricted Payments made in the ordinary course of business, consistent accordance with the practices of the Credit Parties or any of their Subsidiaries prior to the date hereof; and
(h) the transactions described in Section 5.166.04.
Appears in 1 contract
Samples: Credit Agreement (PVH Corp. /De/)
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 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 the Acquisition, purchases or other acquisitions of inventory, materials and equipment and capital expenditures Consolidated Capital Expenditures in the ordinary course of business) all or substantially all of the business, 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 U.S. Subsidiary of U.S. Holdings or a U.S. Guarantor Group Member may be merged or consolidated with or into U.S. Borrower or any U.S. Guarantor, as the case may beother 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 U.S. Borrower or any U.S. Guarantorother Group Member; provided, that (w) in the case of a merger or consolidation of a Group Member that is not a Loan Party with or into a Borrower or any Guarantor, such a merger, U.S. Borrower, Borrower or such U.S. Guarantor, as applicable, shall be the continuing or surviving Person and any Non-U.S. Subsidiary Person, (x) in the case of Holdings may be merged a merger or consolidation of a Guarantor with or into European Borrower a U.S. Guarantor, a U.S. Guarantor shall be the continuing or surviving Person, (y) in the case of a merger or consolidation of any Loan NY\5627635.16 Party with or into any Non-the U.S. GuarantorBorrower, 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 European the U.S. Borrower or to any Non-U.S. Guarantor; provided, (1) a European Borrower or the Non-U.S. Guarantor, as the case may be, shall be the continuing, continuing or surviving Person and (z) in the case of a merger or succeeding Person, or the transferee consolidation of the relevant businessEuropean Guarantor with or into the European Borrower, property the European Borrower shall be the continuing or assets, as the case may besurviving Person, and (2ii) immediately after such transactionany Restricted Subsidiary 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 Restricted Subsidiary, the continuing, surviving which shall be a U.S. Loan Party or succeeding Person(s) or the transferee(s) shall (A) collectively, have a net worth (calculated on a pro forma basis) at least equal to the aggregate net worth of the European Borrower or Non-U.S. GuarantorLoan Party, as applicable, immediately prior thereto if the merging Restricted Subsidiary was a U.S. Loan Party or a European Loan Party, and which, if such transaction involves a U.S. Loan Party, together with each of its Restricted Subsidiaries, shall have complied with the requirements of Sections 5.11, 5.12 and 5.13, as applicable and if such transaction involves (x) the U.S. Borrower, the U.S. Borrower shall be the continuing or surviving Person and (By) either a U.S. Guarantor (but not the U.S. Borrower), a U.S. Guarantor shall be the continuing or surviving Person;
(i) have freely distributable reserves at least equal any 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 the aggregate of the freely distributable reserves of such European U.S. Borrower or Non-any U.S. Guarantor, as applicable, immediately prior thereto, or ; (ii) be liable without limitation any Group Member that is a Foreign Subsidiary (other than the European Borrower in respect the case of a disposition of all its assets) may dispose of any or all of its Obligations, as applicable, as assets (upon voluntary liquidation or otherwise) to any other Group Member and (iii) any Group Member that is not a Borrower and/or Guarantor hereunderLoan 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;
(bc) (i) sales or other dispositions of assets that do not constitute Asset SalesSales and (ii) transactions undertaken among the U.S. Borrower and its Restricted Subsidiaries as part of the Post-Closing Restructuring Transactions;
(cd) (i) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same pursuant to this clause (i) in any Fiscal Year, are less than $10,000,000(x) 2.0% of Consolidated Total Assets plus (y) an amount equal to any unutilized portion of the amount permitted under clause (i)(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 (i) in any Fiscal Year, exceed 5.0% of Consolidated Total Assets; and (ii) certain Asset Sales described by the Borrower Representative in a written notice to the Administrative Agent on or prior to the Closing Date; provided that, in the case of each of clauses (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 Board of directors Directors of Holdings the U.S. Borrower (or similar governing bodya duly authorized committee thereof)), (2) except in the case of any Asset Sale to any Restricted Subsidiary, no less than 7575.0% thereof shall be paid in Cash, cash or Cash Equivalents and (3) except in the case of any Asset Sale to any Restricted Subsidiary, the Net Asset Sale Cash Proceeds thereof shall be applied as required by Section 2.14(a);
(de) disposals any Group Member may sell or discount, in each case without recourse and in the ordinary course of obsoletebusiness, worn out accounts receivable arising in the ordinary course of business (x) which are overdue, or surplus property(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); NY\5627635.16
(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;
(eg) Permitted Acquisitions, provided that the consideration for such acquisitions (other than the acquisition by a Credit Party of all of the economic and voting Equity Interests of the Specified Target) shall constitute (i) less than $50,000,000 any disposition of Securitization Assets to a Securitization Subsidiary in the aggregate in any Fiscal Year, connection with a Qualified Securitization Financing and (ii) less than $150,000,000 any disposition of accounts receivable in connection with receivables factoring arrangements in the aggregate from the Closing Date to the date ordinary course of determinationbusiness;
(fh) dispositions of cash and Cash Equivalents;
(i) Permitted Acquisitions; provided, that the consideration in respect of such Permitted Acquisitions of Persons that do not become U.S. Loan Parties, or of assets that are not acquired by U.S. Loan Parties, which consideration is funded directly or indirectly with Investments by U.S. Loan Parties, shall not exceed an aggregate amount of 5.0% of Consolidated Total Assets (determined at the time of such Permitted Acquisition) over the term of this Agreement;
(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 6.6;
(g) sales, assignments, leases, licenses, transfers, abandonment, cancellation or other dispositions of current or future assets (including without limitation Intellectual Property), 6.06 and Restricted Payments made in the ordinary course of business, consistent accordance with the practices of the Credit Parties or any of their Subsidiaries prior to the date hereof; and
(h) the transactions described in Section 5.166.04.
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-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, 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 U.S. Subsidiary of U.S. Holdings or a U.S. Guarantor Borrower may be merged with or into a U.S. Borrower or any U.S. Guarantor, as the case may be, Loan Party or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to U.S. Borrower or any U.S. GuarantorLoan Party; provided, in the case of such a merger, U.S. Borrower, or such U.S. Guarantor, as applicable, Loan Party shall be the continuing or surviving Person and (ii) any Non-U.S. Foreign Subsidiary of Holdings the U.S. Borrower may also be merged with or into a European Borrower Loan Party or with be liquidated, wound up or into any Non-U.S. Guarantordissolved, 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 European Borrower or to any Non-U.S. GuarantorLoan Party; provided, (1) a European Borrower or the Non-U.S. Guarantor, as in the case may beof such a merger, such European Loan Party shall be the continuing, continuing or surviving or succeeding Person, or the transferee of the relevant business, property or assets, as the case may be, and (2) immediately after such transaction, the continuing, surviving or succeeding Person(s) or the transferee(s) shall (A) collectively, have a net worth (calculated on a pro forma basis) at least equal to the aggregate net worth of the European Borrower or Non-U.S. Guarantor, as applicable, immediately prior thereto and (B) either (i) have freely distributable reserves at least equal to the aggregate of the freely distributable reserves of such European Borrower or Non-U.S. Guarantor, as applicable, immediately prior thereto, or (ii) be liable without limitation in respect of its Obligations, as applicable, as a Borrower and/or Guarantor hereunder;
(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 cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash cash proceeds) (i) are less than $10.0 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 YearYear pursuant to this clause (c), are less than $10,000,00015.0 million; provided 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 such Company (or similar governing body)), (2) no less than 75% thereof of such consideration shall be paid in Cashcash (or Cash Equivalents), and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a2.05(c)(iii);
(d) disposals of obsolete, worn out or surplus property;
(e) the sale, transfer or disposition of Cash Equivalents;
(f) the sale, transfer or disposition of accounts in connection with the collection or compromise thereof in the ordinary course of business;
(g) Permitted Acquisitions, provided that the consideration for such acquisitions which constitutes no more than $225.0 million (other than the acquisition by a Credit Party of all of the economic and voting Equity Interests of the Specified Target) shall constitute less (i) less than $50,000,000 in the aggregate in any Fiscal Year, consideration paid for acquisitions made pursuant to clauses (k) and (l) below and (ii) less the aggregate amount of Investments made pursuant to Section 6.04(d)(ii), other than $150,000,000 Investments made in Wholly Owned Subsidiaries) in the aggregate from the Closing Date to through the date of determinationTerm Loan Maturity Date;
(fh) Investments made in accordance with Section 6.66.04;
(gi) salesAsset Sales by Joint Venture Subsidiaries, assignments, leases, licenses, transfers, abandonment, cancellation the proceeds of which (valued at the principal amount thereof in the case of non-cash proceeds consisting of notes or other dispositions of current or future assets (including without limitation Intellectual Property), debt Securities and valued at fair market value in the ordinary course case of business, consistent other non-cash proceeds) when aggregated with the practices proceeds of all other Assets Sales of Joint Venture Subsidiaries pursuant to this clause (i) shall not exceed $50.0 million; provided the Credit Parties or any of their Subsidiaries prior consideration received for such assets shall be in an amount at least equal to the date hereoffair market value thereof (determined in good faith by the board of directors of such Joint Venture Subsidiary (or similar governing body));
(j) the sale of (i) office, manufacturing and warehouse facility in Mexico City and (ii) manufacturing facility in Hungary;
(k) acquisitions of Equity Interests of a Joint Venture Subsidiary pursuant to put arrangements set forth in the applicable joint venture agreement; and
(hl) the transactions described in Section 5.16Permitted Joint Venture Acquisition.
Appears in 1 contract
Samples: Credit Agreement (Samsonite Corp/Fl)
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 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 the Acquisition, purchases or other acquisitions of inventory, materials and equipment and capital expenditures Consolidated Capital Expenditures in the ordinary course of business) all or substantially all of the business, 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 U.S. Subsidiary of U.S. Holdings or a U.S. Guarantor Group Member may be merged or consolidated with or into U.S. Borrower or any U.S. Guarantor, as the case may beother 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 U.S. Borrower or any U.S. Guarantorother Group Member; provided, that (w) in the case of a merger or consolidation of a Group Member that is not a Loan Party with or into a Borrower or any Guarantor, such a merger, U.S. Borrower, Borrower or such U.S. Guarantor, as applicable, shall be the continuing or surviving Person and any Non-U.S. Subsidiary Person, (x) in the case of Holdings may be merged a merger or consolidation of a Guarantor with or into European Borrower a U.S. Guarantor, a U.S. Guarantor shall be the continuing or surviving Person, (y) in the case of a merger or consolidation of any Loan Party with or into any Non-the U.S. GuarantorBorrower, 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 European the U.S. Borrower or to any Non-U.S. Guarantor; provided, (1) a European Borrower or the Non-U.S. Guarantor, as the case may be, shall be the continuing, continuing or surviving Person and (z) in the case of a merger or succeeding Person, or the transferee consolidation of the relevant businessEuropean Guarantor with or into the European Borrower, property the European Borrower shall be the continuing or assets, as the case may besurviving Person, and (2ii) immediately after such transactionany Restricted Subsidiary 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 Restricted Subsidiary, the continuing, surviving which shall be a U.S. Loan Party or succeeding Person(s) or the transferee(s) shall (A) collectively, have a net worth (calculated on a pro forma basis) at least equal to the aggregate net worth of the European Borrower or Non-U.S. GuarantorLoan Party, as applicable, immediately prior thereto if the merging Restricted Subsidiary was a U.S. Loan Party or a European Loan Party, and which, if such transaction involves a U.S. Loan Party, together with each of its Restricted Subsidiaries, shall have complied with the requirements of Sections 5.11, 5.12 and 5.13, as applicable and if such transaction involves (x) the U.S. Borrower, the U.S. Borrower shall be the continuing or surviving Person and (By) either a U.S. Guarantor (but not the U.S. Borrower), a U.S. Guarantor shall be the continuing or surviving Person;
(i) have freely distributable reserves at least equal any 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 the aggregate of the freely distributable reserves of such European U.S. Borrower or Non-any U.S. Guarantor, as applicable, immediately prior thereto, or ; (ii) be liable without limitation any Group Member that is a Foreign Subsidiary (other than the European Borrower in respect the case of a disposition of all its assets) may dispose of any or all of its Obligations, as applicable, as assets (upon voluntary liquidation or otherwise) to any other Group Member and (iii) any Group Member that is not a Borrower and/or Guarantor hereunderLoan 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;
(bc) (i) sales or other dispositions of assets that do not constitute Asset SalesSales and (ii) transactions undertaken among the U.S. Borrower and its Restricted Subsidiaries as part of the Post-Closing Restructuring Transactions;
(cd) (i) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of non-Cash cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash cash proceeds) when aggregated with the proceeds of all other Asset Sales made within the same pursuant to this clause (i) in any Fiscal Year, are less than $10,000,000(x) 2.0% of Consolidated Total Assets plus (y) an amount equal to any unutilized portion of the amount permitted under clause (i)(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 (i) in any Fiscal Year, exceed 5.0% of Consolidated Total Assets; and (ii) certain Asset Sales described by the Borrower Representative in a written notice to the Administrative Agent on or prior to the Closing Date; provided that, in the case of each of clauses (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 Board of directors Directors of Holdings the U.S. Borrower (or similar governing bodya duly authorized committee thereof)), (2) except in the case of any Asset Sale to any Restricted Subsidiary, no less than 7575.0% thereof shall be paid in Cash, cash or Cash Equivalents and (3) except in the case of any Asset Sale to any Restricted Subsidiary, the Net Asset Sale Cash Proceeds thereof shall be applied as required by Section 2.14(a);
(de) disposals any Group Member may sell or discount, in each case without recourse and in the ordinary course of obsoletebusiness, worn out accounts receivable arising in the ordinary course of business (x) which are overdue, or surplus property(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);
(ef) Permitted Acquisitionsany Group Member may enter into licenses or sublicenses of Software, provided that Trademarks and other Intellectual Property and general intangibles in the consideration for such acquisitions (other than ordinary course of business and which do not materially interfere with the acquisition by a Credit Party of all business of the economic and voting Equity Interests of the Specified TargetGroup Members taken as a whole;
(g) shall constitute (i) less than $50,000,000 any disposition of Securitization Assets to a Securitization Subsidiary in the aggregate in any Fiscal Year, connection with a Qualified Securitization Financing and (ii) less than $150,000,000 any disposition of accounts receivable in connection with receivables factoring arrangements in the aggregate from the Closing Date to the date ordinary course of determinationbusiness;
(fh) dispositions of cash and Cash Equivalents;
(i) Permitted Acquisitions; provided, that the consideration in respect of such Permitted Acquisitions of Persons that do not become U.S. Loan Parties, or of assets that are not acquired by U.S. Loan Parties, which consideration is funded directly or indirectly with Investments by U.S. Loan Parties, shall not exceed an aggregate amount of 5.0% of Consolidated Total Assets (determined at the time of such Permitted Acquisition) over the term of this Agreement;
(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 (including, for the avoidance of doubt, through merger, consolidation or similar transaction) 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 and any Person that would become a Joint Venture after giving effect to such transaction); provided that, in each case, the net proceeds (whether in the form of cash, Equity Interests or any other property) 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 6.6;
(g) sales6.06 and6.06, assignmentsRestricted Payments made in accordance with Section 6.04.6.04, leases, licenses, transfers, abandonment, cancellation or other dispositions of current or future assets (including without limitation Intellectual Property), in the ordinary course of business, consistent with the practices of the Credit Parties or and any of their Subsidiaries prior to the date hereof; and
(h) the transactions described in Section 5.16a letter delivered by the Borrower Representative to the Administrative Agent on the Second Amendment Date.
Appears in 1 contract
Samples: Credit Agreement (PVH Corp. /De/)
