Merger and Sale of Assets. Merge, consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do so, except that: (i) any Subsidiary may merge or consolidate with the Company (provided that the Company shall be the continuing or surviving corporation) or with any one or more other Subsidiaries; (ii) any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Company or another Subsidiary; and (iii) the Company may merge with any corporation provided (a) the Company shall be the continuing or surviving corporation or (b) the surviving corporation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence immediately after such merger.
Appears in 1 contract
Merger and Sale of Assets. Merge, Merge or consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, corporation or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets constituting more than 10% of the consolidated assets of the Company and/or its Dravo Parties and their Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated on a combined basis, or assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) % of the Dravo Consolidated Net Earnings for any one of the three fiscal years then most recently ended ended, to any Person, except that so long as no Default or permit any Subsidiary to do so, except that:
Event of Default shall have occurred and be continuing; (iA) any Subsidiary of Basic or Lime may merge or consolidate with the that Company of which it is a Subsidiary (provided that the such Company shall be the continuing or surviving corporation) or with any one or more other Subsidiaries;
Subsidiaries of such Company, (iiB) any Subsidiary of Basic or Lime may sell, lease, transfer or otherwise dispose of any of its assets to the that Company of which it is a Subsidiary or another Subsidiary of such Company, (C) any Subsidiary may sell or otherwise dispose of all or substantially all of its assets to any Person other than Dravo subject to the conditions specified in Section 5.03(a)(iii) with respect to a sale of the stock of such Subsidiary; and
, and (iiiD) the Company a Dravo Party may merge or consolidate with any corporation other corporation, provided that (ai) the Company such Dravo Party shall be the continuing or surviving corporation or (b) the continuing or surviving corporation, if not the Company, assumes the corporation shall assume all obligations of such Dravo Party under the Company under this AgreementOperative Documents (pursuant to documents acceptable to the Lenders) and, in any case, the Notesmerged or consolidated corporation is at the time of such merger or consolidation in a line of business related to that of such Dravo Party or any Subsidiary thereof, and (ii) such corporation as the L/C Applicationscontinuing or surviving corporation shall not, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence immediately after such merger.merger or consolidation, be in default under this Agreement or the other Operative Documents, including all covenants herein and therein contained; (v)
Appears in 1 contract
Samples: Override Agreement (Dravo Corp)
Merger and Sale of Assets. Merge, Merge or consolidate with or exchange shares with ------------------------- into any other corporation, Person or sell, lease or convey, lease, transfer or otherwise dispose of all or any part of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do soassets, except that:
(ia) any Subsidiary may merge or consolidate with the Company (provided provided, that the Company shall be the continuing or surviving corporation) and (b) any Subsidiary may merge with a Wholly Owned Subsidiary (provided that the Wholly Owned Subsidiary shall be the continuing or with any one or more other Subsidiaries;surviving corporation),
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Company or another to a Wholly Owned Subsidiary; and,
(iii) the Company may merge with any corporation other corporation, provided that (a) the Company shall be the continuing or surviving corporation or corporation, and (b) immediately after giving effect to such merger no Event of Default or Default shall exist,
(iv) any non Wholly Owned Subsidiary may merge or consolidate with any other corporation, provided, that immediately after giving effect to such merger or consolidation (a) the continuing or surviving corporation of such merger or consolidation shall constitute a Subsidiary, and (b) no Event of Default or Default shall exist,
(v) the Company or any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to any Person, provided, that (a) such assets together with (b) all other assets of the Company and its Subsidiaries sold, leased, transferred or otherwise disposed of during the preceding 12 month period (including the Edgewood Facility and the Xxxxxxxx Facility if the Xxxxxxxx Facility is sold), and (c) the assets of all Subsidiaries (including the assets of WGRS if the stock of WGRS is sold) the stock or Debt of which has been sold or otherwise disposed of during the preceding 12-month period pursuant to the second proviso of paragraph 6C(4) (in each transaction measured by the greater of book value or Fair Market Value), do not represent more that 15% of Consolidated Net Tangible Assets as reflected on the most recent annual or quarterly consolidated balance sheet, or for so long as such assets do represent more than 15% of such Consolidated Net Tangible Assets, such assets, in the case of the Company and the other Related Persons, consist solely of the shares of WGRS, the Xxxxxxxx Facility, the Edgewood Facility, equipment that is worthless or obsolete or that is replaced by equipment of equal suitability and value, inventory that is sold in the ordinary course of business and other assets or property that is sold in arm's-length transactions to third parties that are not Affiliates and are sold for fair consideration not in the aggregate in excess of $20,000,000 during any fiscal year of the Company,
(vi) the Company may merge into or consolidate with any solvent corporation if (x) the surviving corporationcorporation is a corporation organized under the laws of any State of the United States of America, if not (y) such corporation shall expressly assume by an agreement satisfactory in substance and form to the CompanyRequired Holder(s) (which agreement may require the delivery in connection with such assumption of such opinions of counsel as the Required Holder(s) may reasonably require), assumes all of the obligations of the Company under this Agreement, Agreement and the Notes, including all covenants herein and the L/C Applicationstherein contained, and in either case under clauses such successor or acquiring corporation shall succeed to and be substituted for the Company with the same effect as if it had been named herein as a party hereto (a) or (b)it being agreed that such assumption shall, Xxxxx X. Xxxxxxxx and other members upon the request of the Company's senior management immediately prior holder of any outstanding Note and at the expense of such successor corporation, be evidenced by the exchange of such Note for another Note executed by such successor corporation, with such changes in phraseology and form as may be appropriate but in substance of like terms as the Note surrendered for such exchange and of like unpaid principal amount, and that each Note executed pursuant to paragraph 11E after such assumption shall be executed by and in the name of such successor corporation) and (z) after giving effect to such merger or consolidation no Event of Default or Default shall own exist,
(vii) the Company and control any Subsidiary may sell or otherwise dispose of inventory in the ordinary course of business, and
(viii) the Company may sell the Xxxxxxxx Facility, if and only if, notwithstanding any other provision of this Agreement, such sale is consummated on or before December 31, 1999 for a Net Proceeds Amount of not less than twenty-five percent (25%) $30,000,000, the Company shall have made a Required Offer to the holders of the Voting Stock Notes in the amount of the surviving corporationat least 5.40% of such Net Proceeds Amount pursuant to paragraph 4E(1), and no Default or Event of Default shall have occurred and be in existence immediately continuing at the time of such sale or after such mergergiving effect thereto.
Appears in 1 contract
Samples: Note Purchase Agreement (Western Gas Resources Inc)
Merger and Sale of Assets. Merge, Merge or consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) its respective assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, Person or permit any Subsidiary to do soPersons, except that:
(i) any Any Subsidiary of the Company may merge or consolidate with the Company (provided that the Company shall be the continuing or surviving corporation) or with any one or more other Subsidiaries;
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of all or any of its assets to the Company or another Subsidiary; anda Wholly-Owned Subsidiary of the Company provided, (a) that -------- the Company or such Wholly-Owned Subsidiary shall be the continuing or surviving corporation and (b) the acquiring or surviving entity is a corporation organized under the laws of, and having its principal place of business in, a state of the United States of America or -the District of Columbia;
(iiiii) the Company may merge or consolidate with any corporation provided other Person, provided, that (a) the Company shall be the continuing or surviving corporation or corporation, and (b) immediately after and giving effect thereto, the surviving corporationCompany would be able to incur $1 of additional Debt and on a pro forma basis based on the most recently available financial information, if the financial tests set forth in paragraph 6A(4) would be satisfied;
(iii) the Company and its Subsidiaries may sell inventory and obsolete equipment in the ordinary course of business;
(iv) the Company may sell or cause Grower Loans to be refinanced in the ordinary course of its business provided, any Guaranties entered into -------- in connection with any such sale or refinancing are permitted pursuant to paragraph 6(C)(iii);
(v) the Company and its Subsidiaries may sell, transfer or otherwise dispose of same or all of their respective properties or assets in a transaction not otherwise permitted pursuant to this paragraph 6B(3) (a "Disposition") if: (i) the CompanyCompany (or the Subsidiary, assumes as the obligations case may be) receives consideration at the time of such Disposition at least equal to the fair market value of the assets or properties issued or sold or otherwise disposed of and (ii) at least 85% of the consideration therefor received by the Company under this Agreementor such Subsidiary is in the form of cash or Cash Equivalents; provided, (A) that immediately after and giving effect to any -------- such Disposition, (1) the Notesgreater of (x) aggregate book value, as reflected on the most recent consolidated balance sheet of the Consolidated Group furnished to the Holders pursuant to paragraph 6A(i) or SA(ii), as the case may be or (y) the aggregate net proceeds (with any non-cash proceeds being valued at its fair market value) of all such properties and assets so sold by the Company and its Subsidiaries ("Assets Sold") during the then current Fiscal Year, less the aggregate amount of Qualifying Reinvestments then made by the Company and its Subsidiaries during the Fiscal Year does not exceed 10% of Consolidated Total Assets Fiscal Year end, and (2) the L/C Applicationsgreater of (x) aggregate book value of all Assets Sold since the Closing Date, as reflected on the consolidated balance sheets of the Consolidated Group for the year of Disposition -furnished to the Holders pursuant to paragraph SA(ii) (or paragraph 5A(i) if none have yet been provided pursuant to paragraph 5A(ii), and (y) the aggregate net proceeds (with any non-cash proceeds being valued at its fair market value of all such Assets Sold since the Closing Date, less the aggregate amount of Qualifying Reinvestments made by the Company and its Subsidiaries since the Closing Date does not exceed 20% of Consolidated Total Assets, for the immediately preceding Fiscal Year end, and (B) in either the case under clauses of a Disposition of the Equity Interest of a Subsidiary, such Disposition otherwise complies with paragraph 13B(2); provided, further, that, in each case other than the sales pursuant to -------- subparagraph (aiii) or (b)iv) above, Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be exists immediately before or immediately after giving effect to such Disposition or such merger or consolidation or is expected to result therefrom. For purposes of subparagraph (v) of this paragraph 6B(3), a "Qualifying Reinvestment" is the use of the proceeds, or of funds expended in existence anticipation of the proceeds, of Assets Sold not more than 90 days prior to or more than 180 days after the date of a Disposition, to purchase (x) tangible, depreciable assets or equipment or real property or depreciable improvements thereon usable in any business permitted by paragraph 6E, or (y) either (1) all of the outstanding Equity Interests of a Person which, immediately after such mergerpurchase, is a Wholly-Owned Subsidiary of the Company and is engaged in a business permitted by paragraph 6E, or (2) all or substantially all of the assets and business of a Person which is engaged in a business permitted by paragraph 6E; provided, that -------- if the Assets Sold are subject to a Lien in favor of the Holders at the time of sale or other disposition, the assets, equipment, real property, improvements, capital stock or other equity interests purchased with the proceeds of such Assets Sold shall not constitute Qualifying Reinvestments unless promptly made subject to a Lien in favor of the Holders with the same priority and otherwise substantially the same terms and conditions as the Liens on the Assets Sold in favor of the Notes.
Appears in 1 contract
Merger and Sale of Assets. Merge, Merge or consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, corporation or sell, lease or transfer or otherwise dispose of (whether assets if the net value of all assets so disposed of constitute 10% or more of Consolidated Tangible Gross Worth for fair value the fiscal year then most recently ended, or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed 10% or more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended ended, to any Person, or permit any Subsidiary to do so, except that:
(i) any Subsidiary may merge or consolidate with the Company (provided that the Company shall be the continuing or surviving corporation) or with any one or more other Subsidiaries;,
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Company or another Subsidiary; and,
(iii) any Subsidiary may sell or otherwise dispose of all or substantially all of its assets subject to the conditions specified in paragraph 6C(4) with respect to a sale of the stock of such Subsidiary,
(iv) the Company may merge with any corporation other corporation, provided that (aA) the Company shall be the continuing or surviving corporation or (b) the surviving corporation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default (B) the Company as the continuing or Event of Default surviving corporation shall be in existence not, immediately after such merger., be in default under this Agreement or on the Notes, including all covenants herein and therein contained,
(v) any Subsidiary may merge or consolidate with any other corporation, provided that, immediately after giving effect to such merger or consolidation (A) the continuing or surviving corporation of such merger or consolidation shall constitute a Subsidiary, and (B) no Event of Default or Default shall exist, and
(vi) the Company may sell, lease, transfer or otherwise dispose of any or all of the assets described in Schedule 6C(5);
Appears in 1 contract
Samples: Senior Promissory Note Agreement (Seneca Foods Corp /Ny/)
Merger and Sale of Assets. Merge, consolidate Enter into any transaction of merger or exchange shares consolidation with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, corporation or sell, lease or transfer or otherwise dispose of (whether for fair value all or otherwise) a substantial part of its assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do so, except that:
(i) any Subsidiary wholly-owned by the Company may merge or consolidate with the Company (provided that the Company shall be the continuing or surviving corporation) or with any one or more other Subsidiaries;,
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of (collectively, "TRANSFER") any of its assets to the Company or another Subsidiary; and,
(iii) any Subsidiary may Transfer all or substantially all of its assets subject to the conditions specified in paragraphs 6C(4)(ii) and the remainder of this 6C(5) with respect to the sale of the stock of such Subsidiary,
(iv) the Company may merge or consolidate with any other corporation provided (a) that the Company shall be the continuing or surviving corporation -------- and that immediately after such merger or (b) the surviving corporationconsolidation, if not the Company, assumes the obligations there shall exist no Event of the Company Default or Default under this Agreement, and
(v) the NotesCompany or any Subsidiary may Transfer any of its assets provided that (x) the book value of all such assets Transferred, together with the book value of all shares of stock and Funded Debt of any Subsidiary Transferred pursuant to the provisions of paragraph 6C(4) and assets Transferred pursuant to clause (iii) of this paragraph 6C(5), in any fiscal year does not exceed 20% of Consolidated Tangible Net Worth as of the last day of the immediately preceding fiscal year, and (y) the L/C Applicationsassets, including any assets Transferred pursuant to clause (iii) of this paragraph 6C(5) and any Subsidiary Transferred pursuant to the provisions of paragraph 6C(4), Transferred in any fiscal year shall have contributed less than 10% of the average amount of Consolidated Net Earnings for the three fiscal years immediately preceding the fiscal year in which such determination takes place; provided, however, that notwithstanding any provision of paragraphs 6C(4) and -------- ------- 6C(5) to the contrary, (A) the Company and its Subsidiaries shall not Transfer assets, on a cumulative basis from the date of this Agreement, either with a book value in excess of 40% of Consolidated Tangible Net Worth (measured as of the last day of the fiscal year immediately preceding the fiscal year in which such determination takes place) or that contributed Consolidated Net Earnings (calculated as set forth in clause (v) (y) above) in excess of 20% of Consolidated Net Earnings for the three fiscal years immediately preceding the fiscal year in which such determination takes place, and in either case under clauses (aB) the Company may discontinue the operation of, or (b)sell, Xxxxx X. Xxxxxxxx any division of its business or any Subsidiary if such division or Subsidiary is unprofitable and other members the Board of Directors of the Company's senior management immediately prior to Company in good faith has determined that the merger shall own and control not business of such division or Subsidiary should be so discontinued or otherwise abandoned; 6C(6). SALE OR DISCOUNT OF RECEIVABLES. Discount or sell with recourse, or sell for less than twenty-five percent the face value thereof, any of its notes or accounts receivable, except that the Company or any Subsidiary may (25%i) sell ------ notes or accounts receivable with recourse provided that the aggregate face amount of such notes and accounts receivable sold in any fiscal year does not exceed 5% of Consolidated gross sales for the Voting Stock of the surviving corporationfiscal year then most recently ended, and no Default (ii) discount notes or Event accounts receivable provided that the amount of Default shall be such discount reflects only customary finance charges paid by the Company or such Subsidiary in existence immediately after such merger.the normal course of business;
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Varian Inc)
Merger and Sale of Assets. Merge, Merge with or into or consolidate or exchange shares with ------------------------- any other corporation, Person or sell, lease or lease, transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do so), except that:
(i) any Subsidiary may merge or consolidate with the Company (provided that Company, so long as the Company shall be is the continuing or surviving corporation) or with any one or more other Subsidiaries;
(ii) any Subsidiary may merge with another Subsidiary, or sell, lease, transfer or otherwise dispose of its assets to another Subsidiary or to the Company; provided, however, that no Subsidiary -------- ------- (other than Matson and Matson Subsidiarxxx) xay mexxx xxto or sell, lease, transfer or otherwise dispose of any assets to any Matson Subsidiary;
(A) Property Subs may sell, lease, transfer, exchange or otherwise dispose of their real property to the extent that such sales or other dispositions are made in the ordinary course of their Property Development Activities, and (B) the Company may sell, lease, transfer, exchange or otherwise dispose of the real property it owned as of December 31, 2000 in the ordinary course of business;
(iv) the Company or any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to third parties so long as (A) the Company fair market value thereof on the date sold or another Subsidiaryotherwise disposed of, together with the fair market value of all other assets sold or otherwise disposed of to third parties (1) within the prior 12 months, does not represent more than 15% of Consolidated Total Assets and (2) since the date of this Agreement, does not represent more than 40% of Consolidated Total Assets and (B) such assets, together with all other assets sold or otherwise disposed of to third parties since the beginning of the most recently ended fiscal year, did not contribute more than 15% of Consolidated Net Income during the Company's most recently ended fiscal year; provided that, notwithstanding the 15% -------- limitation appearing clause (A), above, sales or dispositions in excess thereof in a twelve month period may be made if the proceeds of such sale or disposition are fully utilized in the acquisition of Permitted Assets and/or applied to the repayment of Permitted Debt, in each case within 365 days from the date of sale or disposition; and
(iiiv) the Company may merge or consolidate with any another corporation provided or other Person if (aA) the Company shall it will be the continuing or surviving corporation or entity and (bB) the surviving corporation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence would exist immediately after giving effect to such merger.merger or consolidation;
Appears in 1 contract
Samples: Senior Promissory Note Agreement (Alexander & Baldwin Inc)
Merger and Sale of Assets. MergeNeither the Borrower, the Guarantor nor any of their respective Subsidiaries will:
(a) merge or consolidate with or exchange shares with ------------------------- into any other corporationPerson unless (i) (A) either the Borrower or the Guarantor is the surviving entity, (B) such merger or consolidation is between Subsidiaries (other than the Guarantor (except as would be permitted by clause (A) of this subclause (a))), or (C) such merger or consolidation is between a Subsidiary (other than the Guarantor (except as would be permitted by clause (A) of this subclause (a))) and another Person, and (ii) no Default or an event which, with the giving of notice, the lapse of time or both, would constitute a Default, shall have occurred and be continuing at the time of, or shall result from, such merger or consolidation, or
(b) sell, lease or otherwise transfer all or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) substantially all of the Consolidated assets of the Company and all Subsidiaries Borrower in any transaction or which shall have contributed more than ten percent (10%) series of Consolidated Net Earnings for any one related transactions outside of the three fiscal years then most recently ended to any Personordinary course of business (including, without limitation, the merger or permit any consolidation of a Subsidiary to do sowith a Person which will not thereafter be a Subsidiary), except that:
unless (i) such sales, leases or transfers are between the Borrower, the Guarantor or any Subsidiary may merge of their Subsidiaries, or consolidate with the Company (provided that the Company shall be the continuing or surviving corporation) or with any one or more other Subsidiaries;
(ii) any Subsidiary may sellthe proceeds of such sales, lease, transfer or otherwise dispose of any of its assets leases and transfers are (A) applied to the Company outstanding principal balance and interest of the Advances with simultaneous pro tanto Commitment reductions, (B) used in the Borrower’s business, or another Subsidiary; and
(iiiC) utilized to fund stock repurchases by the Company may merge with any corporation provided (a) Borrower from time to time authorized by the Company Borrower’s Board, provided, further, that, notwithstanding the foregoing, no such sale, lease or transfer shall be permitted pursuant to this Section 7.03(b) if a Default or an event which, with the continuing or surviving corporation or (b) the surviving corporation, if not the Company, assumes the obligations giving of the Company under this Agreementnotice, the Noteslapse of time or both, would constitute a Default, shall have occurred and is continuing at the L/C Applicationstime of, and in either case under clauses (a) or (b)result from, Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporationany such sale, and no Default lease or Event of Default shall be in existence immediately after such mergertransfer.
Appears in 1 contract
Merger and Sale of Assets. Merge, Neither the Company nor any Subsidiary shall merge or consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) its respective assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, Person or permit any Subsidiary to do soPersons, except that:
(i) any Subsidiary may merge or consolidate with the Company (provided that the Company shall be the continuing or surviving corporation) or with any one or more other Subsidiaries;
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of all or any of its assets to the Company or another Subsidiary; a Wholly-Owned Subsidiary (PROVIDED, that the Company or such Wholly-Owned Subsidiary shall be the continuing or surviving corporation in the case of a merger or consolidation and, in any case, the acquiring or surviving entity is a corporation organized under the laws of, and having its principal place of business in, a state of the United States of America or the District of Columbia) and upon any such sale, transfer or other disposition, such Subsidiary may liquidate and dissolve;
(iiiii) the Company may merge or consolidate with any corporation provided other Person; PROVIDED, that (aA) the Company shall be the continuing or surviving corporation Person, or (B) the successor or acquiring Person (1) shall be a solvent Person organized under the laws of any state of the United States of America or the District of Columbia; (2) shall expressly assume in writing all of the obligations and covenants of the Company under the Transaction Documents; and (3) shall provide the Holders the written opinion of counsel satisfactory in form and substance to the Holders confirming that the assumption of such obligations by such Person is duly authorized and constitutes the legal, valid and binding obligation of such Person, enforceable (subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law) against such Person in accordance with its terms, PROVIDED, that in either case, immediately after and giving effect thereto, on a pro forma basis, based on the most recently available financial information, the financial tests set forth in PARAGRAPH 9.1 would be satisfied, and PROVIDED FURTHER, that in either case, immediately after and giving effect thereto, on a pro forma basis, the Company is able to incur at least $1.00 of Debt;
(iii) the Company and each Subsidiary may sell or lease, as lessor, inventory in the ordinary course of its business;
(iv) the Company and each Subsidiary may dispose of equipment or other assets which have become obsolete or otherwise no longer useful or required for the conduct of their business, provided such dispositions do not, individually or in the aggregate, constitute a liquidation of all or substantially all of the Company's or any Subsidiary's assets; and
(v) in addition to the matters set forth above, the Company and any Subsidiary may sell, transfer or otherwise dispose of some or all of its respective properties or assets in a transaction not otherwise permitted pursuant to this PARAGRAPH 9.5 for fair and adequate consideration (a "DISPOSITION"), and if such Disposition is a Disposition of all or substantially all of the assets of a Subsidiary, such Subsidiary may thereafter liquidate and dissolve; PROVIDED, that immediately after and giving effect to any such Disposition, the greater of (a) the aggregate book value of each property and asset so sold (each an "ASSET SOLD" and collectively, the "ASSETS SOLD"), as reflected on the most recent consolidated balance sheet of the Consolidated Group furnished to the Holders pursuant to PARAGRAPH 8.1 prior to the date of Disposition of such Asset Sold, or (b) the surviving corporation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses aggregate net proceeds (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twentywith any non-five percent (25%cash proceeds being valued at its fair market value) of the Voting Stock Assets Sold (1) during the immediately preceding twelve months, less the aggregate amount of Qualifying Reinvestments, did not exceed more than 10% of Consolidated Total Assets as reflected on the most recent consolidated balance sheet of the surviving corporationConsolidated Group delivered to the Holders pursuant to PARAGRAPH 8.1 or (2) since the Closing Date, and no Default or Event less the aggregate amount of Default shall be in existence immediately after such merger.Qualifying Reinvestments, did not exceed more than 25% of Consolidated Total Assets as reflected on the most recent consolidated balance sheet of the Consolidated Group delivered to the Holders pursuant to PARAGRAPH 8.1;
Appears in 1 contract
Merger and Sale of Assets. MergeHoldings shall not, and shall not permit any Subsidiary to, merge with or into or consolidate or exchange shares with ------------------------- any other corporation, Person or sell, lease or lease, transfer or otherwise dispose of its assets, except that:
(a) any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time Subsidiary of the dispositionBorrower may merge with the Borrower, so long as the Borrower is the surviving Person;
(b) any Subsidiary of the Borrower may merge with another Subsidiary of the Borrower, or sell, lease or lease, transfer or otherwise dispose of (whether for fair value or otherwise) its assets to another Subsidiary of the Company and/or Borrower or to the Borrower;
(c) the Borrower or any of its Subsidiaries may sell, exchange, lease, transfer or otherwise dispose of assets (other than inventory Undeveloped Land) in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do so, except that:
(i) any Subsidiary may merge or consolidate with the Company (provided that the Company shall be the continuing or surviving corporation) or with any one or more other Subsidiaries;
(iid) the Borrower or any Subsidiary of its Subsidiaries may sell, lease, transfer or otherwise dispose of assets (other than Undeveloped Land) to Third Parties so long as (i) the fair market value thereof on the date sold, leased, transferred or otherwise disposed of, together with the fair market value of all other assets sold, leased, transferred or otherwise disposed of to Third Parties pursuant to this clause (d) within the prior 12 months, does not represent more than 20% of the Consolidated Total Assets of Holdings (or 20% of the Consolidated Total Assets of the Borrower, if such fiscal quarter is the fiscal quarter ended March 31, 2012) and (ii) such assets, together with all other assets sold or otherwise disposed of to Third Parties pursuant to this clause (d) since the beginning of the most recently ended fiscal year, did not contribute more than 10% of EBITDA determined as of the most recent fiscal quarter with respect to which financial statements are required to be delivered pursuant to Section 6.01(a) or (b); provided that, notwithstanding the percentage limitations appearing in clauses (i) and (ii), above, sales or dispositions in excess thereof in a twelve month period may be made for cash if the proceeds of each such excess sale or disposition (net of taxes thereon) are fully utilized in the acquisition of Permitted Assets and/or applied to the repayment of Permitted Debt, in each case within 365 days from the date of such sale or disposition;
(e) the Borrower or any of its assets Subsidiaries may (i) engage in Code §1031 like-kind exchanges with respect to Undeveloped Land, and (ii) sell, lease, transfer or otherwise dispose of Undeveloped Land to (A) the Borrower or any of its Subsidiaries, (B) a Person which is not (and after giving effect thereto will not be) a Subsidiary of the Borrower, solely in exchange for an equity interest in such Person (unless at the time thereof the intention was that such Person would sell such land in its undeveloped state or that any proceeds would be received on or with respect to such equity interest prior to the Company time such land is developed for commercial or another Subsidiaryresidential purposes), or (C) Third Parties; andprovided that if in any twelve month period the aggregate fair market value of Undeveloped Land which is sold, leased, transferred or otherwise disposed of pursuant to this clause (C), is greater than $100,000,000, then, within 365 days from the date of each sale, lease, transfer or other disposition which resulted in the $100,000,000 threshold being exceeded, an amount equal to such excess (net of taxes thereon) shall be fully utilized in the acquisition of Permitted Assets and/or applied to the repayment of Permitted Debt;
(iiif) the Company Borrower may merge or consolidate with any another corporation provided or other Person if (ai) the Company shall Borrower will be the continuing or surviving corporation entity and (ii) no Default would exist immediately after giving effect to such merger or consolidation; and
(bg) the surviving corporation, if not the Company, assumes the obligations of the Company under this AgreementHoldings, the NotesBorrower, and their Subsidiaries may consummate the L/C Applications, Restructuring Transactions and all transactions in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx connection therewith to the extent consistent with the Separation Agreement and other members of otherwise disclosed to the Company's senior management immediately Lenders prior to the merger shall own and control Closing Date with additions or modifications to the extent not less than twenty-five percent (25%) of materially adverse to the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence immediately after such mergerLenders.
Appears in 1 contract
Merger and Sale of Assets. Merge, Merge with or into or consolidate or exchange shares with ------------------------- any other corporation, Person or sell, lease or lease, transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do soassets, except thatthat so long as no Default under paragraph 5I would result therefrom:
(i) any Subsidiary may merge or consolidate with a Co-Issuer, so long as the Company (provided that Co-Issuer is the Company shall be the continuing or surviving corporation) or with any one or more other SubsidiariesPerson;
(ii) any Subsidiary (other than a Co-Issuer) may merge with another Subsidiary, or sell, lease, transfer or otherwise dispose of its assets to a Subsidiary of Holdings;
(iii) any Subsidiary of Holdings may sell, exchange, lease, transfer or otherwise dispose of assets (other than Undeveloped Land) in the ordinary course of business;
(iv) any Subsidiary of Holdings may sell, lease, transfer or otherwise dispose of assets (other than Undeveloped Land) to Third Parties so long as (A) the fair market value thereof on the date sold, leased, transferred or otherwise disposed of, together with the fair market value of all other assets sold, leased, transferred or otherwise disposed of to Third Parties pursuant to this clause (iv) within the prior 12 months, does not represent more than 20% of the Consolidated Total Assets of Holdings at the end of the fiscal quarter most recently ended as of any date of its determination and (B) such assets, together with all other assets sold or otherwise disposed of to Third Parties pursuant to this clause (iv) since the beginning of the most recently ended fiscal year, did not contribute more than 10% of Adjusted EBITDA determined as of the most recent fiscal quarter with respect to which financial statements are required to be delivered pursuant to paragraph 5A(i) or (ii); provided that, notwithstanding the applicable limitations appearing in clauses (A) and (B), above, sales or dispositions in excess thereof in a twelve month period may be made for cash if the proceeds of each such excess sale or disposition (net of taxes thereon) are fully utilized in the acquisition of Permitted Assets and/or applied to the Company repayment of Permitted Debt, in each case within 365 days from the date of such sale or another disposition;
(v) any Subsidiary of Holdings may (A) engage in Code § 1031 like-kind exchanges with respect to Undeveloped Land, and (B) sell, lease, transfer or otherwise dispose of Undeveloped Land to (1) any Subsidiary of Holdings, (2) a Person which is not (and after giving effect thereto will not be) a Subsidiary, solely in exchange for an equity interest in such Person (unless at the time thereof the intention was that such Person would sell such land in its undeveloped state or that any proceeds would be received on or with respect to such equity interest prior to the time such land is developed for commercial or residential purposes), or (3) Third Parties; provided that if in any twelve month period the aggregate fair market value of Undeveloped Land which is sold, leased, transferred or otherwise disposed of pursuant to this clause (3), is greater than $100,000,000, then, within 365 days from the date of each sale, lease, transfer or other disposition which resulted in the $100,000,000 threshold being exceeded, an amount equal to such excess, net of taxes thereon, shall be fully utilized in the acquisition of Permitted Assets and/or applied to the repayment of Permitted Debt; and
(iiivi) any Borrower (as defined in the Company Bank Credit Agreement) may merge or consolidate with any another corporation provided or other Person if (aA) the Company shall such Borrower will be the continuing or surviving corporation or entity and (bB) the surviving corporation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence would exist immediately after giving effect to such merger.merger or consolidation. The foregoing paragraph 6B(3) shall not prohibit dispositions of margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America) that is held as treasury stock by Holdings. 6B(4). Transactions with Holders of Partnership or Other Equity Interests. Directly or indirectly, purchase, acquire or lease any property from, or sell, transfer or lease any property to, or otherwise deal with, in the ordinary course of business or otherwise (i) any Affiliate (other than in the capacity of an employee, director or officer), or (ii) any Person owning, beneficially or of record, directly or indirectly, 5% or more of the outstanding voting equity of Holdings, A&B, any Co-Issuer or any other Subsidiary, or any executive officer (as such term is defined under the Exchange Act) of Holdings, A&B, any Co-Issuer or any other Subsidiary (other than in such Person’s capacity as an employee); provided, however, that such acts and transactions may be performed or engaged in if (a) they are entered into upon terms no less favorable to Holdings, A&B, such Co-Issuer or such other Subsidiary than if no such relationship described in clauses (i) or (ii) above existed and such acts or transactions are otherwise permitted by this Agreement,
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Alexander & Baldwin, Inc.)
Merger and Sale of Assets. Merge, Merge with or into or consolidate or exchange shares with ------------------------- any other corporation, Person or sell, lease or lease, transfer or otherwise dispose of any of its assets (including, in each case, pursuant to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do soDivision), except thatthat so long as no Default under paragraph 5I would result therefrom:
(i) any Subsidiary may merge or consolidate with the Company (provided that Company, so long as the Company shall be is the continuing or surviving corporation) or with any one or more other SubsidiariesPerson;
(ii) any Subsidiary may merge with another Subsidiary, or sell, lease, transfer or otherwise dispose of its assets to a Subsidiary of Holdings;
(iii) any Subsidiary of Holdings may sell, exchange, lease, transfer or otherwise dispose of assets (other than Undeveloped Land) in the ordinary course of business;
(iv) any Subsidiary of Holdings may sell, lease, transfer or otherwise dispose of assets (other than Undeveloped Land) to Third Parties so long as (A) the fair market value thereof on the date sold, leased, transferred or otherwise disposed of, together with the fair market value of all other assets sold, leased, transferred or otherwise disposed of to Third Parties pursuant to this clause (iv) within the prior 12 months, does not represent more than 20% of the Consolidated Total Assets of Holdings at the end of the fiscal quarter most recently ended as of any date of its determination and (B) such assets, together with all other assets sold or otherwise disposed of to Third Parties pursuant to this clause (iv) since the beginning of the most recently ended fiscal year, did not contribute more than 10% of Adjusted EBITDA determined as of the most recent fiscal quarter with respect to which financial statements are required to be delivered pursuant to paragraph 5A(i) or (ii); provided that, notwithstanding the applicable limitations appearing in clauses (A) and (B), above, sales or dispositions in excess thereof in a twelve month period may be made for cash if the proceeds of each such excess sale or disposition (net of taxes thereon) are fully utilized in the acquisition of Permitted Assets and/or applied to the Company repayment of Permitted Debt, in each case within 365 days from the date of such sale or another disposition;
(v) any Subsidiary of Holdings may (A) engage in Code § 1031 like-kind exchanges with respect to Undeveloped Land, and (B) sell, lease, transfer or otherwise dispose of Undeveloped Land to (1) any Subsidiary of Holdings, (2) a Person which is not (and after giving effect thereto will not be) a Subsidiary, solely in exchange for an equity interest in such Person (unless at the time thereof the intention was that such Person would sell such land in its undeveloped state or that any proceeds would be received on or with respect to such equity interest prior to the time such land is developed for commercial or VP/#62778625.6 residential purposes), or (3) Third Parties; provided that if in any twelve month period the aggregate fair market value of Undeveloped Land which is sold, leased, transferred or otherwise disposed of pursuant to this clause (3), is greater than $100,000,000, then, within 365 days from the date of each sale, lease, transfer or other disposition which resulted in the $100,000,000 threshold being exceeded, an amount equal to such excess, net of taxes thereon, shall be fully utilized in the acquisition of Permitted Assets and/or applied to the repayment of Permitted Debt; and
(iiivi) any Borrower (as defined in the Company Bank Credit Agreement) may merge or consolidate with any another corporation provided or other Person if (aA) the Company shall such Borrower will be the continuing or surviving corporation or entity and (bB) the surviving corporation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence would exist immediately after giving effect to such mergermerger or consolidation. The foregoing paragraph 6B(3) shall not prohibit dispositions of margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States of America) that is held as treasury stock by Holdings. 6B(4). Transactions with Holders of Partnership or Other Equity Interests. Directly or indirectly, purchase, acquire or lease any property from, or sell, transfer or lease any property to, or otherwise deal with, in the ordinary course of business or otherwise (i) any Affiliate (other than in the capacity of an employee, director or officer), or (ii) any Person owning, beneficially or of record, directly or indirectly, 5% or more of the outstanding voting equity of Holdings, the Company or any other Subsidiary, or any executive officer (as such term is defined under the Exchange Act) of Holdings, the Company or any other Subsidiary (other than in such Person’s capacity as an employee); provided, however, that such acts and transactions may be performed or engaged in if (a) they are entered into upon terms no less favorable to Holdings, the Company or such other Subsidiary than if no such relationship described in clauses (i) or (ii) above existed and such acts or transactions are otherwise permitted by this Agreement, (b) they are acts and transactions in which the only consideration given by Holdings or any of its Subsidiaries is the issuance by Holdings of its capital stock, (c) they are between Holdings and/or any of its Subsidiaries or (d) they are otherwise permitted under paragraph 6C hereof.
Appears in 1 contract
Samples: Note Purchase Agreement (Alexander & Baldwin, Inc.)
Merger and Sale of Assets. MergeNeither the Borrower, consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of the Guarantor nor any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its their respective Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do so, except thatwill:
(ia) any Subsidiary may merge or consolidate with or into any other Person unless (i) (A) either the Company Borrower or the Guarantor is the surviving entity, (provided that the Company shall be the continuing B) such merger or surviving corporationconsolidation is between Subsidiaries, or (C) such merger or with any one or more other Subsidiaries;
consolidation is between a Subsidiary and another Person, and (ii) any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Company or another Subsidiary; and
(iii) the Company may merge with any corporation provided (a) the Company shall be the continuing or surviving corporation or (b) the surviving corporation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall have occurred and be continuing at the time of, or results from, such merger or consolidation, or
(b) sell, lease or otherwise transfer all or substantially all of the Consolidated assets of the Borrower in existence immediately after any transaction or series of related transactions outside of the ordinary course of business (including, without limitation, the merger or consolidation of a Subsidiary with a Person which will not thereafter be a Subsidiary), unless (i) such mergersales, leases or transfers are between the Borrower, the Guarantor or any of their Subsidiaries, or (ii) the proceeds of such sales, leases and transfers are (a) applied to the outstanding principal balance and interest under this Agreement, with simultaneous pro tanto Commitment reductions, or under the Credit Agreement dated October 6, 2004, in each case as the Borrower may determine, (b) used in Borrower’s business, or (c) utilized to fund stock repurchases by Borrower from time to time authorized by Borrower’s Board; provided, however, that, notwithstanding the foregoing, no such sale, lease or transfer shall be permitted if a Default or Event of Default shall have occurred and be continuing at the time of, or result from, any such sale, lease or transfer.
Appears in 1 contract
Merger and Sale of Assets. Merge, consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company The Borrower shall not and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or not permit any Subsidiary to do soenter into any transaction of merger, consolidation, pooling of interest, joint venture, syndicate or other combination with any other Person or sell, lease, transfer, contribute as capital, or otherwise dispose of, the assets of the Borrower or any Subsidiary (including, without limitation, any shares of Stock and Indebtedness of any Subsidiary), in any single transaction or series of related transactions, to any Person, except that:
(ia) any Domestic Subsidiary may merge or consolidate with (i) the Company (Borrower, provided that the Company Borrower shall be the continuing or surviving corporation, or (ii) or with any one or more other Domestic Subsidiaries, provided that if any Loan Party is party to such merger, a Loan Party shall be the continuing or surviving corporation;
(iib) any Subsidiary may sell, lease, transfer lease or otherwise dispose of any of its assets to the Company Borrower or another Loan Party;
(c) the Borrower and any Subsidiary may (i) sell Inventory in the ordinary course of business at the fair market value thereof and for cash or cash equivalents, (ii) sell or otherwise dispose of obsolete equipment or other equipment or assets no longer useful in the business in an amount not to exceed an aggregate fair market value of $5,000,000 each calendar year this Agreement is in effect and (iii) license intellectual property to third persons on customary terms (as determined by the Board of Directors of the Borrower in good faith);
(d) except as otherwise provided in Sections 7.7 and 7.8, the Borrower or such Subsidiary may otherwise sell, lease, transfer, or otherwise dispose of, the assets of the Borrower or any Subsidiary, in any single transaction or series of related transactions, to any Person so long as (i) the Borrower or such Subsidiary, as the case may be, receives consideration at the time of such sale, lease, transfer, contribution or disposal of an amount at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors of the Borrower, of the assets subject to such sale, lease, transfer, contribution or disposal, (ii) at least 75% of such consideration is in the form of cash, and (iii) an amount equal to 100% of the Net Cash Proceeds from such sale, lease, transfer, contribution or disposal is applied by the Borrower or such Subsidiary, as the case may be, to (A) prepay Senior Indebtedness (as defined in the Senior Unsecured Note Indenture), (B) acquire assets useful in the business of the Borrower or such Subsidiary, as the case may be, within (in the case of clauses (A) and (B)) 1 year from the later of the date of such sale, lease, transfer, or disposal and the receipt of such Net Cash Proceeds or (C) any combination of clauses (A) and (B) of this Section 7.6(d); and
(iiie) the Company Borrower may merge sell or otherwise dispose of its interests in AgraTech Seeds Inc., a Georgia corporation, provided, that (i) such sale or disposition complies with any corporation provided (a) the Company shall be the continuing or surviving corporation Section 7.6(d), or (bii) the surviving corporationsuch sale or disposition results in favorable federal tax treatment, if not the Company, assumes the obligations or a federal tax deduction pursuant to Section 170 of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence immediately after such mergerCode.
Appears in 1 contract
Samples: Credit Agreement (Gold Kist Inc.)
Merger and Sale of Assets. Merge, Merge with or into or consolidate or exchange shares with ------------------------- any other corporation, partnership, company or other Person or sell, lease or lease, transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do so), except that:
(i) any Subsidiary may merge or consolidate with a Company, so long as such Company is the Company (provided that the Company shall be the continuing or surviving corporation) or with any one or more other Subsidiaries;
(ii) any Subsidiary may merge or sell, lease, transfer or otherwise dispose of its assets to another Subsidiary or to either Company; provided, however, that neither Company nor any of their -------- ------- Subsidiaries (other than Xxxxxx and its Subsidiaries) may merge into or sell, lease, transfer or otherwise dispose of any assets to Xxxxxx or its Subsidiaries;
(A) Property Subs may sell, lease, transfer, exchange or otherwise dispose of their real property to the extent that such sales or other dispositions are made in the ordinary course of their Property Development Activities, and (B) the Parent may sell, lease, transfer, exchange or otherwise dispose of the real property it owned as of the date of this Agreement in the ordinary course of business;
(iv) the Companies or any Subsidiary thereof may sell, lease, transfer or otherwise dispose of any of its assets to third parties so long as (A) the Company fair market value thereof on the date sold or another Subsidiaryotherwise disposed of, together with the fair market value of all other assets sold or otherwise disposed of to third parties within the prior 12 months or since the date hereof, does not represent more than 15% or 40%, respectively, of the value of the Parent's Consolidated Total Assets on June 30, 1996 (or in the case of a Subsidiary acquired by Parent or any Subsidiary after June 30, 1996, on the date such Subsidiary was acquired) and (B) such assets, together with all other assets sold or otherwise disposed of to third parties since the beginning of the most recently ended fiscal year, have not contributed a substantial portion of the Parent's Consolidated Net Income during the most recently ended fiscal year; provided that, notwithstanding -------- the 15% limitation appearing clause (A), above, sales or dispositions in excess thereof in a twelve month period may be made if the proceeds of such sale or disposition are fully utilized in the acquisition of Permitted Assets and/or applied to the repayment of Permitted Debt, in each case within 365 days from the date of sale or disposition; and
(iiiv) the a Company may merge or consolidate with any another corporation provided or other Person if (aA) the Company shall it will be the continuing or surviving corporation or entity and (bB) the surviving corporation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence would exist immediately after giving effect to such merger.merger or consolidation;
Appears in 1 contract
Merger and Sale of Assets. Merge, Merge or consolidate with or exchange shares with ------------------------- into any other corporation, Person or sell, lease or convey, lease, transfer or otherwise dispose of all or any part of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do soassets, except that:
(ia) any Subsidiary may merge or consolidate with the Company (provided provided, that the Company shall be the continuing or surviving corporation) and (b) any Subsidiary may merge with a Wholly Owned Subsidiary (provided that the Wholly Owned Subsidiary shall be the continuing or with any one or more other Subsidiaries;surviving corporation),
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Company or another to a Wholly Owned Subsidiary; and,
(iii) the Company may merge with any corporation other corporation, provided that (a) the Company shall be the continuing or surviving corporation or corporation, and (b) immediately after giving effect to such merger no Event of Default or Default shall exist,
(iv) any non Wholly Owned Subsidiary may merge or consolidate with any other corporation, provided, that immediately after giving effect to such merger or consolidation (a) the continuing or surviving corporation of such merger or consolidation shall constitute a Subsidiary, and (b) no Event of Default or Default shall exist,
(v) the Company or any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to any Person, provided, that (a) such assets together with (b) all other assets of the Company and its Subsidiaries sold, leased, transferred or otherwise disposed of during the preceding 12 month period (including the Edgewood Facility and the Xxxxxxxx Facility if the Xxxxxxxx Facility is sold), and (c) the assets of all Subsidiaries (including the assets of WGRS if the stock of WGRS is sold) the stock or Debt of which has been sold or otherwise disposed of during the preceding 12-month period pursuant to the second proviso of paragraph 6C(4) (in each transaction measured by the greater of book value or Fair Market Value), do not represent more that 15% of Consolidated Net Tangible Assets as reflected on the most recent annual or quarterly consolidated balance sheet, as of each date of determination during the 12-month period ended 12 months after the later of the date of the sale of WGRS and the date of the sale of the Xxxxxxxx Facility or for so long as such assets do represent more than 15% of such Consolidated Net Tangible Assets, such assets, in the case of the Company and the other Related Persons, consist solely of the shares of WGRS, the Xxxxxxxx Facility, the Edgewood Facility, equipment that is worthless or obsolete or that is replaced by equipment of equal suitability and value, inventory that is sold in the ordinary course of business and other assets or property that is sold in arm's-length transactions to third parties that are not Affiliates and are sold for fair consideration not in the aggregate in excess of $20,000,000 during any fiscal year of the Company,
(vi) the Company may merge into or consolidate with any solvent corporation if (x) the surviving corporationcorporation is a corporation organized under the laws of any State of the United States of America, if not (y) such corporation shall expressly assume by an agreement satisfactory in substance and form to the CompanyRequired Holder(s) (which agreement may require the delivery in connection with such assumption of such opinions of counsel as the Required Holder(s) may reasonably require), assumes all of the obligations of the Company under this Agreement, Agreement and the Notes, including all covenants herein and the L/C Applicationstherein contained, and in either case under clauses such successor or acquiring corporation shall succeed to and be substituted for the Company with the same effect as if it had been named herein as a party hereto (a) or (b)it being agreed that such assumption shall, Xxxxx X. Xxxxxxxx and other members upon the request of the Company's senior management immediately prior holder of any outstanding Note and at the expense of such successor corporation, be evidenced by the exchange of such Note for another Note executed by such successor corporation, with such changes in phraseology and form as may be appropriate but in substance of like terms as the Note surrendered for such exchange and of like unpaid principal amount, and that each Note executed pursuant to paragraph 11D after such assumption shall be executed by and in the name of such successor corporation) and (z) after giving effect to such merger or consolidation no Event of Default or Default shall own exist,
(vii) the Company and control any Subsidiary may sell or otherwise dispose of inventory in the ordinary course of business, and
(viii) the Company may sell the Xxxxxxxx Facility, if and only if, notwithstanding any other provision of this Agreement, such sale is consummated on or before December 31, 1999 for a Net Proceeds Amount of not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, $30,000,000 and no Default or Event of Default shall have occurred and be continuing at the time of such sale or after giving effect thereto."
K. Paragraph 6C(7). Limitation on Credit Extensions. Clause (ii) of Paragraph 6C(7) of the Agreement is amended in existence immediately after such merger.full to read as follows:
Appears in 1 contract
Samples: Second Amended and Restated Master Shelf Agreement (Western Gas Resources Inc)
Merger and Sale of Assets. MergeNot, and not permit any Subsidiary to, merge, amalgamate or consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the dispositionPerson, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) any assets of the Company and/or its Subsidiaries (to any Person, other than inventory in the ordinary course of business) which constitute more than ten percent (10%) , including sales of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do soinventory, except thatthat if no Event of Default or Unmatured Event of Default exists or would result therefrom:
(ia) the Borrower or any Subsidiary Guarantor may merge or consolidate amalgamate with the Company any other Subsidiary Guarantor (provided that the Company Borrower shall be the continuing or surviving corporation) or with Person in any one or more other Subsidiariessuch transaction involving the Borrower);
(b) any Loan Party (other than the Parent) may merge or consolidate with another Person (that is not a Loan Party) so long as (i) such Loan Party is the surviving entity, (ii) the Parent continues to own, directly or indirectly, 100% of such Loan Party and (iii) such merger or consolidation constitutes a Permitted Acquisition;
(c) any Subsidiary (other than the Borrower) that has sold, transferred or otherwise disposed of all or substantially all of its assets in connection with an asset sale permitted under this Agreement and no longer conducts any active trade or business may be liquidated, wound up and dissolved;
(d) any Loan Party (other than the Parent) may sell, lease, transfer or otherwise dispose of any of its assets to any other Loan Party (other than the Company Parent);
(e) the Borrower or any Subsidiary may sell or otherwise dispose of inventory and Cash Equivalents in the ordinary course of business, grant non-exclusive licenses of intellectual property in the ordinary course of business, sell or discount past due or impaired accounts receivable for collection purposes (but not for factoring, securitization or other financing purposes), or liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(f) the Borrower or any Subsidiary may sell other assets so long as such assets (i) are sold for cash or Cash Equivalents, (ii) are sold for their fair market value and on an arms-length basis, and (iii) generate net proceeds in an amount not to exceed, when combined with all such assets disposed of in any Fiscal Year, $5,000,000; and
(g) any Subsidiary may be dissolved or otherwise cease to exist provided that all rights and interest in and to all property, assets and liabilities of such Subsidiary are assumed by or transferred to the Borrower or another Subsidiary; andprovided that, if the Subsidiary being dissolved is a Loan Party, all rights and interests in such Subsidiary may only be transferred to another Loan Party.
(iiih) provided, however that, notwithstanding the Company foregoing, neither Borrower nor any Subsidiary may merge with sell, transfer or otherwise dispose of any corporation provided (a) the Company shall be the continuing or surviving corporation or (b) the surviving corporation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and interest in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence immediately after such mergerany TIF Debt.
Appears in 1 contract
Merger and Sale of Assets. MergeNo Company shall merge, amalgamate or consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the dispositionPerson, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) any assets of the Company and/or its Subsidiaries (to any Person other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do so, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist:
(ia) any Subsidiary a Company may merge merge, amalgamate or consolidate with the Company (any other Company; provided that (i) if one of such Companies is a Credit Party, the Company Credit Party shall be the continuing or surviving corporationPerson, (ii) if one of such Companies is a Borrower, a Borrower shall be the continuing or with any surviving Person, and (iii) if one of such Companies is DMC Global, DMC Global shall be the continuing or more other Subsidiariessurviving Person;
(iib) any Subsidiary a Credit Party may sell, lease, transfer or otherwise dispose of any of its assets to another Credit Party;
(c) a Company that is not a Credit Party may sell, lease, transfer or otherwise dispose of any of its assets to any other Company;
(d) a Company (other than a Borrower) may be dissolved, provided that, if such Company is a Credit Party, all assets of such Company shall have been transferred to another Credit Party;
(e) a Company may sell, lease, transfer or otherwise dispose of any assets that are obsolete or no longer useful in such Company’s business;
(f) any disposition (excluding any disposition consisting of any equity interest in any of the Company Subsidiaries of DMC Global) of assets if (i) the consideration therefor is not less than the fair market value of the related asset (as determined in good faith by a Financial Officer) and (ii) after giving effect thereto, the aggregate fair market value of the assets as reasonably determined by DMC Global disposed of in all dispositions pursuant to this subpart (f) would not exceed Five Million Dollars ($5,000,000) during any fiscal year of DMC Global and Fifteen Million ($15,000,000) in the aggregate during the term of this Agreement; provided that the consideration for any disposition shall consist of at least seventy-five percent (75%) cash or Cash Equivalents payable at closing;
(g) dispositions of indebtedness from DMC Global to a Subsidiary thereof that is a Credit Party or from a Subsidiary of DMC Global that is a Credit Party to DMC Global or another Subsidiary thereof that is a Credit Party in exchange for, upon conversion for, or in contribution in respect of, equity interests in such Subsidiary of DMC Global in connection with the capitalization or recapitalization from time to time of any such Subsidiary and dispositions of Indebtedness from a Subsidiary that is not a Credit Party to another Subsidiary that is not a Credit Party in exchange for, upon conversion for, or contribution in respect of, equity interests in such Subsidiary that is not a Credit Party in connection with the capitalization or recapitalization from time to time of any such Subsidiary;
(h) dispositions occurring as the result of a casualty event, condemnation or expropriation;
(i) payment of Restricted Payments permitted by Section 5.15 hereof;
(j) the Companies may sell accounts receivable pursuant to the Citibank Factoring Agreement, so long as there is no credit recourse to any Company with respect to such accounts receivable after such sale, except in the case of a breach by a Company of any Asset Representation (as defined in the Citibank Factoring Agreement) with respect to any such receivable;
(k) the Companies may sell accounts receivable pursuant to the MUFG Factoring Agreement, so long as there is no credit recourse to any Company with respect to such accounts receivable after such sale; and
(iiil) the Company Companies may merge with any corporation provided (a) sell accounts receivable pursuant to the Company shall be the continuing or surviving corporation or (b) the surviving corporation, if not the Company, assumes the obligations of the Company under this Schlumberger Factoring Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior so long as there is no credit recourse to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence immediately any Company with respect to such accounts receivable after such mergersale, except in the case of a breach by a Company of any Asset Representation (as defined in the Schlumberger Factoring Agreement) with respect to any such receivable.
Appears in 1 contract
Merger and Sale of Assets. MergeThe Company shall not, consolidate or exchange shares with nor shall it ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of permit any of its assets to Subsidiaries to, consolidate with or merge into any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the dispositionother corporation or entity, or sellconvey, lease or transfer or otherwise dispose of lease its properties and assets substantially as an entirety (whether for fair value or otherwisemeasured on a consolidated basis) assets of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or and the Company shall not permit any Subsidiary Person to do soconsolidate with or merge into the Company, except that the Company may consolidate or merge with another corporation or entity, and a Person may consolidate with or merge into the Company, provided that:
(ia) after giving effect to any Subsidiary may merge interim merger(s) consummated pursuant to the terms of the merger agreement in a transaction or consolidate series of transactions occurring substantially simultaneously with the Company (provided that merger with the Company, the Company shall be the continuing ultimate surviving entity and shall be after the merger a solvent corporation organized and existing under the laws of the United States of America, any State thereof or surviving corporation) or with any one or more other Subsidiariesthe District of Columbia;
(iib) immediately after giving effect to such transaction and treating any Subsidiary may sell, lease, transfer or otherwise dispose Indebtedness which becomes an obligation of any of its assets to the Company or another Subsidiarya Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default or Default shall have happened and be continuing; and
(iiic) the Company may merge has delivered to the Administrative Agent a certificate signed by a Responsible Officer and an opinion of counsel, each stating that such consolidation or merger complies with this Section 7.2 and that all ----------- conditions precedent herein provided for relating to such transaction have been complied with, and such certificate shall additionally state that, in the opinion of the board of directors of the Company, the transaction is in the interest of the Company and not disadvantageous to the Administrative Agent and the Banks, provided, however, the foregoing shall not be deemed to restrict or -------- ------- preclude the merger or consolidation of any corporation Subsidiary with or into the Company or any other Subsidiary, or the conveyance, transfer or lease of the properties and assets of any Subsidiary substantially as an entirety (measured on a consolidated basis) to any other Subsidiary, if the requirements of subsection ---------- 7.2(a) and (b) shall have been met, and a certificate signed by a Responsible -------------- Officer and an opinion of counsel, each stating that such consolidation, merger, conveyance, transfer or lease complies with this Section 7.2 and that all ----------- conditions precedent herein provided (a) for relating to such transaction have been complied with, shall have been delivered to the Administrative Agent in sufficient copies for each Bank, provided, further, that the Company shall be not -------- ------- convey or transfer any assets to a Subsidiary for the continuing or surviving corporation or (b) purpose of improving the surviving corporation, if not the Company, assumes the obligations credit position of the Company under this Agreement, the Notes, and the L/C Applications, and such Subsidiary in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior order to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall be in existence immediately after such mergerenable it to borrow money.
Appears in 1 contract
Samples: Credit Agreement (Oneok Inc /New/)
Merger and Sale of Assets. Merge, Merge or consolidate or exchange shares with ------------------------- any other corporation, Person or sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets of the Company and/or its Subsidiaries (other than inventory sold in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated assets of the Company and all Subsidiaries or which shall have contributed more than ten percent (10%) of Consolidated Net Earnings for any one of the three fiscal years then most recently ended to any Person, or permit any Subsidiary to do so, except that:
(i) any Restricted Subsidiary may merge or consolidate with the Company (provided that the Company shall be the continuing or surviving corporationentity) or with any one or more other Restricted Subsidiaries;,
(ii) any Restricted Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Company or another a Restricted Subsidiary; and,
(iii) any Restricted Subsidiary may merge or consolidate with any other entity, provided that, immediately after giving effect to such merger or consolidation, (a) the continuing or surviving entity of such merger or consolidation shall be a solvent corporation or partnership organized under the laws of any state of the United States of America and shall constitute a Restricted Subsidiary, (b) no Event of Default or Material Default shall exist, and (c) following the merger, the entity surviving the merger is not engaged in any business other than a Permitted Business, provided that, after giving effect on a pro forma basis to such merger or consolidation, the gross revenue contribution of pulp and paper manufacturing activities of the merged or consolidated entity and its Subsidiaries on a consolidated basis for the 12 months preceding such merger or consolidation does not exceed 33% of the total revenues of the Company, or such merged or consolidated entity, as the case may be, and its Subsidiaries on a consolidated basis,
(iv) the Company may merge with or consolidate with, or sell or dispose of all or substantially all of its assets to, any corporation other entity, provided that (a) either (x) the Company shall be the continuing or surviving entity (in the case of any such merger), or (y) the successor or acquiring entity shall be a solvent corporation or (b) partnership organized under the surviving corporation, if not laws of any state of the Company, assumes United States of America and shall expressly assume in writing all of the obligations of the Company under this AgreementAgreement and on the Notes, including all covenants herein and therein contained, and such successor or acquiring corporation or partnership shall succeed to and be substituted for the Company with the same effect as if it had been named herein as a party hereto, provided, however, that no such sale shall release the Company from any of its obligations and liabilities under this Agreement or the Notes unless such sale is followed by the complete liquidation of the Company and substantially all the assets of the Company immediately following such sale are distributed in such liquidation, and (b) immediately after such merger or consolidation or such sale or other disposition, (x) no Event of Default or Material Default shall exist, (y) the Company could incur at least $1 of additional Funded Debt or Current Debt pursuant to paragraph 6B(2)(ix), and (z) the entity surviving the merger or consolidation or to which such assets have been transferred is not engaged in any business other than a Permitted Business, provided that, after giving effect on a pro forma basis to such merger, consolidation or sale, the gross revenue contribution of pulp and paper manufacturing activities of the merged or consolidated entity and its Subsidiaries on a consolidated basis for the 12 months preceding such merger, consolidation or sale does not exceed 33% of total revenues of the Company or such merged or consolidated entity, as the case may be, and its Subsidiaries on a consolidated basis,
(v) the Company or any Restricted Subsidiary may sell Designated Acres for the fair value thereof as reasonably determined in good faith by the Responsible Representatives and the Company may contribute Designated Acres to the Facilities Subsidiary or any Subsidiary of the Facilities Subsidiary as a capital contribution,
(vi) the Company and its Restricted Subsidiaries may exchange Timberlands with other Persons in the ordinary course of business, provided that (a) the fair value of the Timberlands plus any net cash proceeds received in such exchange is, in the good faith judgment of the Responsible Representatives, not less than the fair value of Timberlands exchanged plus any other consideration paid, (b) such exchange would not materially and adversely affect the business, property or assets, condition or results of operations of the Company and its Restricted Subsidiaries on a consolidated basis or of the Facilities Subsidiary or impair the ability of the Company to perform its obligations hereunder or under the Notes, and (c) any Timberlands so exchanged shall be deemed sold to the L/C Applicationsextent of cash proceeds received in such exchange and such sales shall be allowed only to the extent otherwise permitted by this paragraph 6B(5),
(vii) the Company and its Restricted Subsidiaries may sell properties for not less than the fair value thereof as determined in good faith by the Responsible Representatives, provided that the aggregate net proceeds of such sales in any calendar year do not exceed an amount equal to one percent (1%) of Consolidated Total Assets, determined as of the last day of the immediately preceding calendar year,
(viii) the Company and its Restricted Subsidiaries may otherwise sell for cash properties in either case under clauses an amount not less than the fair value thereof as determined in good faith by the Responsible Representatives if and only if (a) immediately after giving effect to such proposed sale, no condition or event shall exist which constitutes an Event of Default or Material Default, (b) the net proceeds of any such sale (x) are applied, within 180 days after such sale, to the repayment of Qualified Debt selected by the Company, which, in the case of the Notes, shall be a prepayment pursuant to paragraph 4B, or (by) are applied, within 180 days after such sale, to the purchase of productive assets in the same line of business, and (c) immediately after giving effect to such sale (giving effect on a pro forma basis to any proposed retirement of Qualified Debt out of the proceeds thereof), Xxxxx X. Xxxxxxxx and other members the Company could incur $1 of additional Funded Debt or Current Debt pursuant to paragraph 6B(2)(ix); provided that, if any such sale constitutes a sale of more than 15% of the Company's senior management Tangible Assets as of the end of the Company's most recently ended fiscal quarter, all the unapplied net proceeds of such sale shall be placed immediately prior in an escrow or cash collateral account or accounts, pursuant to an agreement or agreements in form and substance reasonably satisfactory to the merger shall own and control not less holders of greater than twenty-five percent (25%) 50% of the Voting Stock outstanding principal amount of Qualified Debt, for the surviving corporationpurpose of application in accordance with clause (b) above, and
(ix) the Company and no Default or Event of Default shall be in existence immediately after such merger.its Restricted Subsidiaries may make the Merger-Related Contributions;
Appears in 1 contract
Merger and Sale of Assets. Merge, Merge or consolidate or exchange shares with ------------------------- any other corporation, sell, lease or transfer or otherwise dispose of any of its assets to any Person for a consideration which is materially less than the fair value (as valued in good faith by the Company) of such assets at the time of the disposition, corporation or sell, lease or transfer or otherwise dispose of (whether for fair value or otherwise) assets all of the Company and/or its Subsidiaries (other than inventory in the ordinary course of business) which constitute more than ten percent (10%) of the Consolidated consolidated assets of the Company and its Subsidiaries, or assets which, together with all assets of the Company and Subsidiaries sold, leased or otherwise disposed of during the most recent 36-month rolling period, constitute a Substantial Part of the consolidated assets of the Company and its Subsidiaries or which shall have contributed more than ten percent (10%) a Substantial Part of Consolidated Net Earnings for any one of the three fiscal years then most recently ended ended, to any Person, or permit any Subsidiary to do so, except that:
(i) any Subsidiary may merge or consolidate with the Company (provided that the Company shall be the continuing or surviving corporation) ), or with any one or more other Subsidiaries;,
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Company or another Subsidiary; ,
(iii) any Subsidiary may sell or otherwise dispose of all or substantially all of its assets subject tot he conditions specified in paragraph 6B(3) with respect to a sale of the stock of such Subsidiary, and
(iiiiv) the Company may merge or consolidate with any corporation other corporation, provided that (a) the Company shall be the continuing or surviving corporation or corporation, (b) the surviving corporationafter giving effect to such merger or consolidation, if not the Company, assumes the obligations of the Company under this Agreement, the Notes, and the L/C Applications, and in either case under clauses (a) or (b), Xxxxx X. Xxxxxxxx and other members of the Company's senior management immediately prior to the merger shall own and control not less than twenty-five percent (25%) of the Voting Stock of the surviving corporation, and no Default or Event of Default shall exist under this Agreement and (c) assuming that the effective date of such merger or consolidation was the last day of a fiscal quarter, no Default or Event of Default would exist under clause (i) of paragraph 6A: 6B(5). Restrictions on Transactions with Affiliates and Stockholders. Directly or indirectly, purchase, acquire or lease any property from, or sell, transfer or lease any property (other than shares of stock of Company) to, or otherwise deal with, in the ordinary course of business or otherwise (i) any Affiliate or Substantial Stockholder, or (ii) any corporation in which an Affiliate, Substantial Stockholder or the Company (either directly or through Subsidiaries) owns 5% or more of the outstanding voting stock, except that (a) any such Affiliate or Substantial - 15 - Stockholder may be a director, officer or employee of the Company or any Subsidiary and may be paid reasonable compensation in existence immediately after connection therewith and (b) such merger.acts and transactions prohibited by this paragraph 6B(5) may be performed or engaged in if (x) specifically authorized by the Company's Board of Directors (exclusive of any Affiliate or Substantial Stockholder who is a director and who may have a direct or indirect interest in such transaction) and (y) upon terms not less favorable to the Company or a Subsidiary (as the case may be) than if no such relationship described in clauses (i) and (ii) above existed
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Ace Hardware Corp)
