No Acquisitions or Dispositions (i) There are no contracts, letters of intent, term sheets, agreements, arrangements or understandings with respect to the direct or indirect acquisition or disposition by any of the Company or its subsidiaries of interests in assets or real property that are required to be described in the Registration Statement and the Prospectus that are not so described; and (ii) except as described in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has sold any real property to a third party during the immediately preceding twelve (12) calendar months, except for such sales as would not reasonably be expected to have a Material Adverse Effect.
Fundamental Changes; Disposition of Assets; Acquisitions 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 Subsidiary of any Borrower may be merged with or into such Borrower or any Wholly-Owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, assets or property may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to such Borrower or any Wholly-Owned Subsidiary Guarantor; provided, that in the case of such a merger, the applicable Borrower or such Wholly-Owned Subsidiary Guarantor, as applicable shall be the continuing or surviving Person;
(b) 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 $20,000,000; 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 2.14(a);
(e) disposals of damaged, obsolete, worn out or surplus property;
(f) the Acquisition and 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 U.S. Borrower) 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 2.14(b);
(i) the abandonment, cancellation or other disposition of Intellectual Property that is not material or is no longer used or useful in any material respect in the operation of the U.S. Borrower and its 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.
Asset Dispositions, etc The Borrower will not, and will not permit any of its Subsidiaries to, sell, transfer, contribute or otherwise convey, or grant options, warrants or other rights with respect to, all or substantially all of the assets of (a) the Borrower or (b) the Subsidiaries of the Borrower, taken as a whole, except sales of assets between or among the Borrower and Subsidiaries of the Borrower.
Restrictions on Dispositions Shareholder agrees that, from and after the date of this Agreement and through the Effective Time, he or she will not take any action that will alter or affect in any way the right to vote the Shares, except (i) with the prior written consent of Bancorp or (ii) to change such right from that of a shared right of Shareholder to vote the Shares to a sole right of Shareholder to vote the Shares.
Fundamental Changes; Dispositions Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any Person, or convey, sell, lease or sublease, transfer, assign or otherwise dispose of, whether in one transaction or a series of related transactions, all or any part of its business, property or assets (including accounts and rights to receive income), whether now owned or hereafter acquired (or agree to do any of the foregoing), or purchase or otherwise acquire, whether in one transaction or a series of related transactions, all or substantially all of the assets of any Person (or any division thereof) (or agree to do any of the foregoing), or permit any of its Subsidiaries to do any of the foregoing; provided, however, that
(i) any wholly-owned Subsidiary of any Loan Party (other than Ultimate Parent or the Parent) may be merged into such Loan Party or another wholly-owned Subsidiary of such Loan Party, or may consolidate with another wholly-owned Subsidiary of such Loan Party, so long as (A) no other provision of this Agreement would be violated thereby, (B) such Loan Party gives the Agents at least 10 days’ prior written notice of such merger or consolidation, (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger or consolidation and (E) in the case of any merger involving a Loan Party, the surviving Subsidiary, if any, becomes a Loan Party by operation of law or is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger or consolidation;
(ii) any Loan Party and its Subsidiaries may (A) sell Inventory in the ordinary course of business, (B) dispose of obsolete, worn-out or surplus equipment in the ordinary course of business, (C) sell or otherwise dispose of other property or assets (other than Accounts Receivable or Inventory of any Loan Party) for an aggregate amount not less than the fair market value of such property or assets, so long as (x) at least 85% of the consideration for each such Disposition is for cash and (y) the Loan Parties will be in compliance with the financial covenants set forth in Section 7.03 calculated on a pro forma basis to give effect to such Disposition, (D) consummate any transactions constituting a Permitted Investment, (E) use or transfer money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents, and (F) enter into non-exclusive license agreements with respect to intellectual property rights in the ordinary course of business, provided that the Net Cash Proceeds of such Dispositions (1) in the case of clause (C) above, do not exceed $2,500,000 in the aggregate in any Fiscal Year and (2) in all cases, the applicable requirements of Section 2.05(c)(v) are satisfied;
(iii) any dormant Subsidiary of any Loan Party (other than a Borrower or the Parent), owning assets the aggregate value of which does not exceed $100,000 at any time, may wind-up, liquidate or dissolve, so long as (A) no other provision of this Agreement would be violated thereby, (B) in the case of any wind-up, liquidation or dissolution involving a Loan Party, such Loan Party gives the Agents at least 10 days’ prior written notice of such winding up, liquidation or dissolution, (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such dissolution or liquidation and (E) the aggregate value of all such dormant Subsidiaries that wind-up, liquidate or dissolve does not exceed $500,000; and
(iv) any Subsidiary of any Loan Party (other than Ultimate Parent or the Parent), may merge with any Person in connection with a Permitted Acquisition, so long as (A) no other provision of this Agreement would be violated thereby, (B) in the case of a merger involving a Loan Party, such Loan Party gives the Agents at least 10 days’ prior written notice of such merger or consolidation, (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Lenders’ rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger and (E) in the case of any merger involving a Loan Party, the surviving Subsidiary, if any, becomes a Loan Party by operation of law or is joined as a Loan Party hereunder pursuant to a Joinder Agreement and is a party to a Security Agreement and the Equity Interests of such Subsidiary is the subject of a Security Agreement, in each case, which is in full force and effect on the date of and immediately after giving effect to such merger or consolidation.
Restrictions on Subsidiary Distributions Except as provided herein, no Credit Party shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of Borrower to (a) pay dividends or make any other distributions on any of such Subsidiary’s Equity Interests owned by Borrower or any other Subsidiary of Borrower, (b) repay or prepay any Indebtedness owed by such Subsidiary to Borrower or any other Subsidiary of Borrower, (c) make loans or advances to Borrower or any other Subsidiary of Borrower, or (d) transfer, lease or license any of its property or assets to Borrower or any other Subsidiary of Borrower other than restrictions (i) imposed by law or by any Credit Document, (ii) in agreements evidencing Indebtedness permitted by Section 6.1(k) that impose restrictions on the property so acquired, and any amendments, modifications, extensions or renewals thereof (including any such extension or renewal arising as a result of an extension, renewal or refinancing of any Indebtedness containing such restriction or condition) that do not materially expand the scope of any such restriction or condition taken as a whole, (iii) by reason of customary provisions restricting assignments, subletting or other transfers contained in leases, licenses, Joint Venture agreements and similar agreements entered into in the ordinary course of business, (iv) that are or were created by virtue of any transfer of, agreement to transfer or option or right with respect to any property, assets or Equity Interests not otherwise prohibited under this Agreement, (v) in the case of any Subsidiary that is not directly or indirectly wholly owned by Borrower, restrictions and conditions imposed by its Organizational Documents or any related joint venture, shareholders’ or similar agreement; provided that such restrictions and conditions apply only to such Subsidiary and to any Equity Interests in such Subsidiary, or (vi) identified on Schedule 6.5, and any amendments, modifications, extensions or renewals thereof (including any such extension or renewal arising as a result of an extension, renewal or refinancing of any Indebtedness containing such restriction or condition) that do not materially expand the scope of any such restriction or condition taken as a whole.
Investments; Acquisitions No Loan Party will, nor will it permit any of its Restricted Subsidiaries to, directly or indirectly, make or own any Investment in any other Person, including any Joint Venture, or acquire, by purchase or otherwise, all or substantially all the business, property or fixed assets of, or Capital Stock of any other Person, or any division or line of business of any other Person except:
(a) Company and the Restricted Subsidiaries may make and own Investments in Cash and Cash Equivalents;
(b) Loan Parties and their Restricted Subsidiaries may continue to own the Investments owned by them as of the Effective Date in any Loan Party and their Restricted Subsidiaries, Loan Parties may make and own additional equity Investments in other Loan Parties and Non-Loan Parties may make and own additional equity Investments in other Non-Loan Parties;
(c) Loan Parties and their Restricted Subsidiaries may make intercompany loans to the extent permitted under Section 6.1(e);
(d) Company and the Restricted Subsidiaries may make Consolidated Capital Expenditures;
(e) Company and the Restricted Subsidiaries may continue to own the Investments owned by them and described in Schedule 6.3 annexed hereto;
(f) Parent and Company may acquire and hold obligations of one or more Officers or other employees of Company, Parent or its Restricted Subsidiaries in connection with such Officers’ or employees’ acquisition of shares of Company’s Capital Stock, so long as no Cash is actually advanced by Company, Parent or any of its Restricted Subsidiaries to such Officers or employees in connection with the acquisition of any such obligations;
(g) Company and the Restricted Subsidiaries may make and own Investments constituting non-Cash proceeds of sales, transfers and other dispositions of property to the extent permitted by Section 6.7;
(h) Company and the Restricted Subsidiaries may acquire Securities in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to Company or any of the Restricted Subsidiaries or as security for any such Indebtedness or claim;
(i) Company and the Restricted Subsidiaries may make any Restricted Junior Payment expressly permitted by Section 6.5 (it being understood that any such Restricted Junior Payment may be made in the form of an intercompany loan or advance);
(j) Company and the Restricted Subsidiaries may acquire Investments (including debt obligations) received in the ordinary course of business by Company or any of the Restricted Subsidiaries in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising out of the ordinary course of business;
(k) Company and the Restricted Subsidiaries may acquire Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary pursuant to a transaction expressly permitted by any other paragraph of this Section; provided that such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary;
(l) Company and the Restricted Subsidiaries may make or continue to hold Investments resulting from deposits referred to in paragraph (c) of the definition of “Permitted Encumbrances” and clause (viii) of Section 6.2(a);
(m) Company may perform its obligations under and in accordance with the Conveyance of Undivided Mineral Interest, the Sand Purchase Documents and Natural Gas Hedging Agreements; provided that all such Natural Gas Hedging Agreements shall be entered into to manage (in the good faith business judgment of Company) risks of fluctuations in the price or availability of natural gas to which Company and the Restricted Subsidiaries are exposed in the conduct of their business and the management of their liabilities;
(n) Loan Parties may make and hold loans and advances to their employees in an aggregate amount not to exceed the greater of (i) $2,500,000 and (ii) 0.12% of Consolidated Tangible Assets as of the most recently ended Fiscal Quarter at any time outstanding, provided that such loan or advance is not made in material violation of any law;
(o) Company and the Restricted Subsidiaries may acquire (in one transaction or a series of related transactions) (i) the assets or the outstanding voting stock or economic interests of any Person, (ii) any division, line of business or other business unit of any Person, or (iii) Capital Stock of a Joint Venture constituting a majority of the Capital Stock of such Joint Venture (such Person or such division, line of business or other business unit of such Person or such Joint Venture shall be referred to herein as the “Target”), in each case that is a type of business (or assets used in a type of business) permitted to be engaged in by the Loan Parties pursuant to the terms hereof, so long as (A) no Event of Default shall then exist or would exist immediately after giving effect thereto other than for Limited Condition Investments in which case no Event of Default shall exit at the time the relevant acquisition agreement is entered into, (B) to the extent required by Section 5.9 and Section 5.10, Collateral Agent, on behalf of Secured Parties, shall have received (or shall receive in connection with the closing of such acquisition) a perfected security interest in all property (including Capital Stock) acquired with respect to the Target described in the applicable forms of Collateral Documents, subject to Liens permitted under Section 6.2, and the Target, if a Person, shall have executed a counterpart of the Subsidiary Guaranty and Pledge and Security Agreement, (C) the aggregate consideration (including without limitation earn out obligations (to be calculated in accordance with GAAP as the estimated amount thereof on the closing date for any acquisition, which determination shall be made on the date the definitive documentation for such acquisition is entered into), deferred compensation and the amount of Indebtedness and other liabilities (other than working capital liabilities) assumed by Loan Parties, but excluding equity consideration, consideration paid from the proceeds of equity of Parent or capital contributions made to Parent and non-competition arrangements) paid by Loan Parties to acquire Capital Stock of Joint Ventures in respect of which Collateral Agent, on behalf of Secured Parties, shall not have received a perfected security interest and guarantees reasonably satisfactory to Administrative Agent shall not exceed the greater of (x) $100,000,000 and (y) 4.7% of Consolidated Tangible Assets as of the most recently ended Fiscal Quarter, (D) for any such acquisitions Company shall have provided financial statements for any Target acquired in any such acquisition for the last Fiscal Year of such Target (to the extent available to Company), and (E) in the case of the acquisition of a Person, such Person shall become a wholly-owned the Restricted Subsidiary of a Loan Party;
(p) Company and its Domestic Subsidiaries that are Restricted Subsidiaries may make and own Investments in Foreign Subsidiaries in an aggregate amount not to exceed in the aggregate at any time $25,000,000 plus the then-applicable Available Amount; and
(q) in addition to Investments otherwise expressly permitted by this Section, Company and the Restricted Subsidiaries may make Investments not exceeding in the aggregate at any time $25,000,000;
(r) Foreign Subsidiaries that are Restricted Subsidiaries may make and own Investments in other Foreign Subsidiaries that are Restricted Subsidiaries;
(s) in addition to Investments otherwise expressly permitted by this Section, Company and the Restricted Subsidiaries may make additional Investments under Section 6.3(o), Section 6.3(p) and Section 6.3(q) in an aggregate amount not to exceed $25,000,000 at any time, so long as (i) no Potential Event of Default or Event of Default shall have occurred and be continuing and (ii) any such Investments in Non-Loan Parties does not exceed $10,000,000 in the aggregate at any time;
(t) the acquisition by Parent, Company or any Restricted Subsidiary of Company of Repurchase Offer Loans; and
(u) Parent and its Restricted Subsidiaries may make NMTC Investments; provided that the aggregate amount of NMTC Investments shall not exceed $60,000.000. Notwithstanding anything herein, Investments made after the Effective Date by any Loan Party or Restricted Subsidiary in a Non-Loan Party otherwise permitted by Section 6.3, will not be permitted if, immediately after giving effect thereto, the aggregate amount of such Investments together with any Restricted Junior Payments made after the Effective Date by any Loan Party or Restricted Subsidiary in a Non-Loan Party otherwise permitted by Section 6.5 during the term of the Loans is more than the greater of $100,000,000 and 5% of Consolidated Tangible Assets as of the most recently ended Fiscal Quarter.
Restrictions on Intercompany Transfers Neither the Parent nor the Borrower shall, and neither the Parent nor the Borrower shall permit any other Loan Party or any other Subsidiary (other than an Excluded Subsidiary) to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary to: (a) pay dividends or make any other distribution on any of such Subsidiary’s capital stock or other equity interests owned by the Borrower or any Subsidiary; (b) pay any Indebtedness owed to the Borrower or any Subsidiary; (c) make loans or advances to the Borrower or any Subsidiary; or (d) transfer any of its property or assets to the Borrower or any Subsidiary; other than (i) with respect to clauses (a) through (d) those encumbrances or restrictions contained in any Loan Document or in any other agreement (A) evidencing Unsecured Indebtedness that the Borrower, any other Loan Party or any other Subsidiary may create, incur, assume or permit or suffer to exist under this Agreement and (B) containing encumbrances and restrictions imposed in connection with such Unsecured Indebtedness that are either substantially similar to, or less restrictive than, such encumbrances and restrictions set forth in the Loan Documents, (ii) with respect to clause (d), customary provisions restricting assignment of any agreement entered into by the Borrower, any other Loan Party or any Subsidiary in the ordinary course of business or (iii) with respect to clauses (a) through (d), in the case of a Subsidiary that is not a Wholly Owned Subsidiary, restrictions contained in the organizational documents of, or other agreements governing an Investment in, such Subsidiary arising after the date hereof to the effect that any such dividends, distributions, loans, advances or transfers of property must be on fair and reasonable terms and on an arm’s length basis.
Limitations on Restricted Payments (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable Four-Quarter Period, the Issuer is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after April 3, 2012 (other than Restricted Payments made pursuant to clauses (2) through (10) of clause (b) of this Section 4.11), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on April 1, 2012 to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus
(B) 100% of (A) (i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Issuer), (y) Equity Interests of a Person (other than the Issuer or a Subsidiary of the Issuer) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Issuer or its Restricted Subsidiaries since April 3, 2012 as a contribution to its common equity capital or from the issue or sale of Qualified Equity Interests of the Issuer or from the issue or sale of convertible or exchangeable Disqualified Equity Interests or convertible or exchangeable debt securities of the Issuer that have been converted into or exchanged for such Qualified Equity Interests (other than Equity Interests or debt securities sold to a Subsidiary of the Issuer and Excluded Contributions) and (B) the aggregate net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (A) above, plus
(C) 100% of (A) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary is reduced on the Issuer’s consolidated balance sheet upon the conversion or exchange after April 3, 2012 of any such Indebtedness into or for Qualified Equity Interests of the Issuer and (B) the aggregate net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (A) above, plus
(D) with respect to Restricted Investments made by the Issuer and its Restricted Subsidiaries after April 3, 2012, an amount equal to the sum, without duplication, of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Issuer or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment to a purchaser other than the Issuer or a Subsidiary or (iv) the release of any guarantee (except to the extent any amounts are paid under such guarantee) that constituted a Restricted Investment plus (B) with respect to any Unrestricted Subsidiary designated as such after April 3, 2012 and redesignated as a Restricted Subsidiary after April 3, 2012, the Fair Market Value of the Issuer’s Investment in such Subsidiary held by the Issuer or any of its Restricted Subsidiaries at the time of such redesignation.
(b) Notwithstanding the foregoing, the provisions set forth in clause (a) of this Section 4.11 will not prohibit:
(1) the payment of (a) any dividend or redemption payment or the making of any distribution within 60 days after the date of declaration thereof if, on the date of declaration, the dividend, redemption or distribution payment, as the case may be, would have complied with the provisions of this Indenture or (b) any dividend or similar distribution by a Restricted Subsidiary to the holders of its Equity Interests on a pro rata basis or on a basis more favorable to the Issuer;
(2) the redemption or acquisition of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (including the payment of any required premium and any fees and expenses incurred in connection with such purchase, repurchase, redemption, defeasance, other acquisition or retirement for value) (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests, (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.10 and the other terms of this Indenture or (c) upon a Change of Control or in connection with an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.12 and Section 4.15 and purchased all Notes validly tendered pursuant to the relevant offer prior to purchasing, repurchasing, redeeming, defeasing or acquiring or retiring for value such Subordinated Indebtedness;
(4) the redemption, repurchase or other acquisition or retirement for value of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), either (x) upon any such individual’s death, disability, retirement, severance or termination of employment or service or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement; provided, in any case, that the aggregate cash consideration paid for all such redemptions, repurchases or other acquisitions or retirements shall not exceed (A) $10.0 million during any calendar year (with unused amounts in any calendar year being carried forward to the next succeeding calendar year but not any subsequent years) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (4), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (4);
(a) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (b) any repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights;
(6) dividends on Preferred Stock or Disqualified Equity Interests issued in compliance with Section 4.10 to the extent such dividends are included in the definition of Consolidated Interest Expense;
(7) the payment of cash in lieu of fractional Equity Interests;
(8) payments or distributions to dissenting stockholders pursuant to applicable law in connection with a merger, consolidation or transfer of assets that complies with the provisions of Article 5;
(9) Restricted Payments with Excluded Contributions; or
(10) payment of other Restricted Payments in an aggregate amount since April 3, 2012 not to exceed $25.0 million; provided that (a) in the case of any Restricted Payment pursuant to clauses (3), (4), (9) or (10) above, no Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clauses (2), (3) or (4)(B) above shall increase the Restricted Payments Basket. For the purposes of determining compliance with any U.S. dollar-denominated restriction on Restricted Payments denominated in a foreign currency, the U.S. dollar-equivalent amount of such Restricted Payment shall be calculated based on the relevant currency exchange rate in effect on the date that such Restricted Payment was made.
Asset Dispositions None of the Borrower Entities shall, directly or indirectly, sell, lease, convey, transfer or otherwise dispose (including via any sale and leaseback transaction) of any of its non-cash assets or property, whether now owned or hereafter acquired, except for Permitted Sales and the following (“Permitted Asset Dispositions”), which Permitted Asset Dispositions may fall within any one of the following categories (whether or not such Permitted Asset Dispositions could fall within one or more other categories and, if an asset disposition could qualify for more than one category of Permitted Asset Dispositions, the Borrower may designate which category the asset disposition qualifies for without such asset disposition counting against other categories):
(i) Sales of inventory in the ordinary course of their businesses;
(ii) Sales or dispositions of damaged, worn, obsolete, or other unneeded assets in the ordinary course of their businesses for not less than Fair Market Value;
(iii) Sales or other dispositions of Investments permitted by Section 5.02(e)(ii) for not less than Fair Market Value; provided that no Default shall have occurred and be continuing;
(iv) [Intentionally Omitted];
(v) Sales or other dispositions of the entities listed on Schedule 5.02(c)(v); provided, however, that in connection with any sale or other disposition of substantially all of the Equity Securities and/or substantially all of the assets of Atlanta AG, the Borrower shall be in Pro Forma Compliance with all Financial Covenants after giving effect to such sale or disposition and no later than the date of any such sale or disposition, the Borrower shall deliver to the Administrative Agent a certificate executed by the Chief Accounting Officer or Treasurer of the Borrower which sets forth the calculation of Pro Forma Compliance with all Financial Covenants set forth in Section 5.03 after giving effect to such sale or disposition;
(vi) Sales or other transfers of property and assets from De Minimis US Subsidiaries dissolved pursuant to Section 5.02(d)(ii); and
(vii) Sales or other dispositions for Fair Market Value, the Net Cash Proceeds of which are applied to the prepayment of the Loans or otherwise as set forth in Section 2.06(c); provided that no Default shall have occurred and be continuing or result from such sale or other disposition, the Borrower shall be in Pro Forma Compliance with all Financial Covenants after giving effect to such Permitted Asset Disposition and no later than the date of the Permitted Asset Disposition pursuant to this clause (vii), the Borrower shall deliver to the Administrative Agent a Compliance Certificate which (A) states that no Default has occurred or is continuing and (B) sets forth the calculation of Pro Forma Compliance with all Financial Covenants set forth in Section 5.03 after giving effect to the Permitted Asset Disposition; and provided, further, that the Borrower’s requirement to advise the Administrative Agent as provided above shall not apply to any Relevant Sales that in the aggregate are equal to or less than $5,000,000 for such fiscal year.