Merger; Disposition of Assets. The Borrower shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge or consolidate with any Person or, directly or indirectly, sell, lease or transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except that: (a) any Restricted Subsidiary of the Borrower may merge with the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with any one or more other Restricted Subsidiaries; (b) any Restricted Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Borrower; and any Restricted Subsidiary other than Xxxx Xxxxx Xxxxxxxx xxx Xxxx Xxxxx Xxxxx Xxxxxxx may sell, lease, transfer or otherwise dispose of its assets to another Restricted Subsidiary; (c) any Restricted Subsidiary may merge or consolidate with any other entity, provided that, immediately after giving effect to such merger or consolidation (i) the continuing or surviving entity of such merger or consolidation shall constitute a Restricted Subsidiary, (ii) no Event of Default or Material Default shall exist, and (iii) the continuing or surviving entity is not engaged in any business other than a Permitted Business or a Permitted Ancillary Business and, 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 Borrower 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 Borrower and its Subsidiaries on a consolidated basis; (d) the Borrower may merge or consolidate with any other entity, provided that (i) the Borrower shall be the continuing or surviving entity and (ii) immediately after such merger or consolidation, (A) no Event of Default or Material Event of Default shall exist, (B) the Borrower could incur at least $1 of additional Funded Debt pursuant to Section 7.05(i), and (C) the Borrower is not engaged in any business other than a Permitted Business or a Permitted Ancillary Business and, 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 total revenues of such merged or consolidated entity and its Subsidiaries on a consolidated basis; (e) the Borrower or any Restricted Subsidiary may make dispositions of inventory in the Ordinary Course of Business; (f) the Borrower or any Restricted Subsidiary may sell Designated Acres (or notes receivable arising from the sale of Designated Acres) for the fair value thereof as reasonably determined in good faith by the Responsible Representatives; (g) the Borrower and its Restricted Subsidiaries may exchange Timberlands with other Persons in the Ordinary Course of Business, provided that (i) the fair value of the Timberlands plus any Net 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, (ii) such exchange would not materially and adversely affect the business, Property, condition or results of operations of the Borrower and its Restricted Subsidiaries on a consolidated basis or of the Facilities Subsidiary or impair the ability of the Borrower to perform its obligations hereunder and under any other Indebtedness, and (iii) any Properties shall be deemed sold to the extent of Net Proceeds received and such sales shall be allowed only to the extent otherwise permitted by this Section 7.02; (h) the Borrower and its Restricted Subsidiaries may sell Properties for cash 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 $40,000,000; (i) the Borrower and its Restricted Subsidiaries may otherwise sell Properties for cash in 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) not less than 50% of the Net Proceeds of any such sale (x) are applied, within one year after such sale to repayment of Qualified Debt in accordance with Section 2.05(b)(ii), or (y) are applied, within one year after such sale, to the purchase of productive assets in the same line of business to be owned by the Borrower (or, if the sale is by a Restricted Subsidiary, by such Restricted Subsidiary or the Borrower), provided that, if any such sale constitutes a sale of more than 15% of the Borrower’s Tangible Assets, all the unapplied Net Proceeds of such sale less the amount, if any, of such Net Proceeds to be included in clause (i)(g) of the definition of Available Cash in the calculation thereof for the calendar quarter of the Borrower in which the sale occurs shall be placed immediately in escrow or cash collateral account or accounts, pursuant to an agreement or agreements in form and substance reasonably satisfactory to the holders of greater than 50% of the outstanding principal amount of Qualified Debt (which escrow agreement or agreements shall provide for a release from escrow of an amount equal to any additions to Available Cash pursuant to clause (i)(g) of the definition of Available Cash with respect to such sale in calendar quarters of the Borrower subsequent to the calendar quarter in which such sale occurs), for the purpose of application in accordance with clause (x) or (y) of this clause (B), 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 proceeds thereof), the Borrower could incur $1 of additional Funded Debt pursuant to Section 7.05(i); (j) the Borrower may transfer or make contributions of Designated Acres to any Facility Subsidiary to the extent permitted pursuant to Section 7.04(a); and (k) the Borrower and its Restricted Subsidiaries may make contributions of Property to the capital of Persons in which the Borrower directly or indirectly holds an equity or other ownership interest to the extent that such contributions constitute Investments that are permitted by the provisions of Section 7.04(i).
Appears in 1 contract
Merger; Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge or consolidate with any Person or, directly or indirectly, sell, lease or transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except that:
(a) any Restricted Subsidiary of the Borrower Company may merge with the Borrower Company (provided that the Borrower Company shall be the continuing or surviving corporation) or with any one or more other Restricted Subsidiaries;
(b) any Restricted Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the BorrowerCompany; and any Restricted Subsidiary other than Xxxx Xxxxx Xxxxxxxx xxx Xxxx Xxxxx Xxxxx Xxxxxxx Plum Creek Southern and Plum Creek South Central may sell, lease, transfer or otherwise dispose of its assets to another traxxxxx xx xxxxxxxxx xxxxxxx xx xxx xxxxxx xx xxxxher Restricted Subsidiary;
(c) any Restricted Subsidiary may merge or consolidate with any other entity, provided that, immediately after giving effect to such merger or consolidation (i) the continuing or surviving entity of such merger or consolidation shall constitute a Restricted Subsidiary, (ii) no Event of Default or Material Default shall exist, and (iii) the continuing or surviving entity is not engaged in any business other than a Permitted Business or and a Permitted Ancillary Business and, 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 Borrower Company 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 Borrower Company and its Subsidiaries on a consolidated basis;
(d) the Borrower Company may merge or consolidate with any other entity, provided that (i) the Borrower Company shall be the continuing or surviving entity and (ii) immediately after such merger or consolidation, (A) no Event of Default or Material Event of Default shall exist, (B) the Borrower Company could incur at least $1 of additional Funded Debt pursuant to Section 7.05(isubsection 8.5(i), and (C) the Borrower Company is not engaged in any business other than a Permitted Business or and a Permitted Ancillary Business and, 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 total revenues of such merged or consolidated entity and its Subsidiaries on a consolidated basis;
(e) the Borrower Company or any Restricted Subsidiary may make dispositions of inventory in the Ordinary Course of Business;
(f) the Borrower Company or any Restricted Subsidiary may sell Designated Acres (or notes receivable arising from the sale of Designated Acres) for the fair value thereof as reasonably determined in good faith by the Responsible Representatives;
(g) the Borrower Company and its Restricted Subsidiaries may exchange Timberlands with other Persons in the Ordinary Course of Business, provided that (i) the fair value of the Timberlands plus any Net 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, (ii) such exchange would not materially and adversely affect the business, Property, condition or results of operations of the Borrower Company and its Restricted Subsidiaries on a consolidated basis or of the Facilities Subsidiary or impair the ability of the Borrower Company to perform its obligations hereunder and under any other Indebtedness, and (iii) any Properties shall be deemed sold to the extent of Net Proceeds received and such sales shall be allowed only to the extent otherwise permitted by this Section 7.028.2;
(h) the Borrower Company and its Restricted Subsidiaries may sell Properties for cash 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 $40,000,000;
(i) the Borrower Company and its Restricted Subsidiaries may otherwise sell Properties for cash in 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) not less than 50% of the Net Proceeds of any such sale (x) are applied, within one year after such sale to repayment of Qualified Debt in accordance with Section 2.05(b)(ii2.7(a)(i), or (y) are applied, within one year after such sale, to the purchase of productive assets in the same line of business to be owned by the Borrower Company (or, if the sale is by a Restricted Subsidiary, by such Restricted Subsidiary or the BorrowerCompany), provided that, if any such sale constitutes a sale of more than 15% of the Borrower’s Company's Tangible Assets, all the unapplied Net Proceeds of such sale less the amount, if any, of such Net Proceeds to be included in clause (i)(g) of the definition of Available Cash in the calculation thereof for the calendar quarter of the Borrower Company in which the sale occurs shall be placed immediately in escrow or cash collateral account or accounts, pursuant to an agreement or agreements in form and substance reasonably satisfactory to the holders of greater than 50% of the outstanding principal amount of Qualified Debt (which escrow agreement or agreements shall provide for a release from escrow of an amount equal to any additions to Available Cash pursuant to clause (i)(g) of the definition of Available Cash with respect to such sale in calendar quarters of the Borrower Company subsequent to the calendar quarter in which such sale occurs), for the purpose of application in accordance with clause (x) or (y) of this clause (B), 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 proceeds thereof), the Borrower Company could incur $1 of additional Funded Debt pursuant to Section 7.05(isubsection 8.5(i);
(j) the Borrower Company may transfer or make contributions of Designated Acres to any Facility Subsidiary to the extent permitted pursuant to Section 7.04(a8.4(a); and
(k) the Borrower Company and its Restricted Subsidiaries may make contributions of Property to the capital of Persons in which the Borrower Company directly or indirectly holds an equity or other ownership interest to the extent that such contributions constitute Investments that are permitted by the provisions of Section 7.04(i8.4(i).
Appears in 1 contract
Merger; Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge or consolidate with any Person or, directly or indirectly, sell, lease or transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except that:
(a) any Restricted Subsidiary of the Borrower Company may merge with the Borrower Company (provided that the Borrower Company shall be the continuing or surviving corporation) or with any one or more other Restricted Subsidiaries;
(b) any Restricted Subsidiary of the Company may sell, lease, transfer or otherwise dispose of any of its assets to the Borrower; and any Restricted Subsidiary other than Xxxx Xxxxx Xxxxxxxx xxx Xxxx Xxxxx Xxxxx Xxxxxxx may sell, lease, transfer Company or otherwise dispose of its assets to another a Restricted Subsidiary;
(c) any Restricted Subsidiary may merge or consolidate with any other entity, provided that, immediately after giving effect to such merger or consolidation (i) the continuing or surviving entity of such merger or consolidation shall constitute a Restricted Subsidiary, (ii) no Event of Default or Material Default shall exist, and (iii) following the continuing or merger, the entity surviving entity the merger is not engaged in any business other than a Permitted Business or a Permitted Ancillary Business andprovided 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 Borrower Company and its Subsidiaries on a consolidated combined basis for the 12 months preceding such merger or consolidation does not exceed 33% of the total revenues of the Borrower Company and its Subsidiaries on a consolidated combined basis;
(d) the Borrower Company may merge or consolidate with with, or sell or dispose of all or substantially all of its assets to, any other entity, provided that (i) either (x) the Borrower Company shall be the continuing or surviving entity (in the case of such merger) or (y) the successor or acquiring entity shall be a solvent corporation or partnership organized under the laws of any state of the United States and shall expressly assume in writing all of the obligations of the Company under this Agreement, the Note Agreements, the 1994 Senior Note Agreements and the Mortgage Note Agreements, 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, the Note Agreements, the 1994 Senior Note Agreements and the Mortgage Note Agreements 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 (ii) immediately after such merger or consolidationconsolidation or such sale or other disposition, (Ax) no Event of Default or Material Event of Default shall exist, (By) the Borrower Company could incur at least $1 of additional Funded Debt pursuant to Section 7.05(isubsection 8.5(i), and (Cz) the Borrower 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 or a Permitted Ancillary Business andprovided 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 combined basis for the 12 months preceding such merger or consolidation does not exceed 33% of total revenues of such merged or consolidated entity and its Subsidiaries on a consolidated combined basis;
(e) the Borrower Company or any Restricted Subsidiary may make dispositions of inventory in the Ordinary Course of Business;
(f) the Borrower Company or any Restricted Subsidiary may sell Designated Acres (or notes receivable arising from the sale of Designated Acres) for the fair value thereof as reasonably determined in good faith by the Responsible Representatives;
(g) the Borrower Company and its Restricted Subsidiaries may exchange Timberlands with other Persons in the Ordinary Course of Business, provided that (i) the fair value of the Timberlands plus any Net 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, (ii) such exchange would not materially and adversely affect the business, Property, condition or results of operations of the Borrower Company and its Restricted Subsidiaries on a consolidated combined basis or of the Facilities Subsidiary or impair the ability of the Borrower Company to perform its obligations hereunder and under any other Indebtednessthe Note Agreements, the 1994 Senior Note Agreements and the Mortgage Note Agreements, and (iii) any Properties shall be deemed sold to the extent of Net Proceeds received and such sales shall be allowed only to the extent otherwise permitted by this Section 7.028.2;
(h) the Borrower Company and its Restricted Subsidiaries may sell Properties for cash 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 (the "Permitted Amount") equal to (i) in calendar year 1996, $40,000,000;20,000,000 and (ii) in each calendar year thereafter, the sum of (x) the Permitted Amount for the preceding calendar year plus (y) an increase equal to the percentage increase, if any, in the consumer price index for goods and services in the United States, as published by the U.S. Bureau of Labor Statistics, or successor publication, for such preceding calendar year, times such permitted amount; and
(i) the Borrower Company and its Restricted Subsidiaries may otherwise sell Properties for cash in an amount not less than the fair value thereof as determined in good faith by the Responsible Representatives, if and only if: if (Ai) immediately after giving effect to such proposed sale, no condition or event shall exist which constitutes an Event of Default or Material Default, (Bii) not less than 50% of the Net Proceeds of any such sale (x) are applied, within one year 180 days after such sale to repayment of Qualified Debt Debt, with a percentage of such repayment being applied to the Loans in accordance with Section 2.05(b)(ii)an amount equal to or greater than the pro rata share of the Loans as a percentage of the outstanding principal of other Qualified Debt, or (y) are applied, within one year 180 days after such sale, to the purchase of productive assets in the same line of business business, provided that the Company shall have notified the Agent promptly after its determination to be owned by so apply the Borrower Net Proceeds, (or, iii) if the sale is by a Restricted Subsidiary, by such Restricted Subsidiary or the Borrower), provided that, if Net Proceeds of (x) any such sale constitutes a sale of more than 15% of the Borrower’s Tangible Assetsexceed $50,000,000, all the unapplied and if such Net Proceeds of such sale less are not applied immediately as set forth in (ii)(x) or (y) above, then the amount, if any, entire amount of such Net Proceeds to be included in clause (i)(g) of the definition of Available Cash in the calculation thereof for the calendar quarter of the Borrower in which the sale occurs shall be are placed immediately upon receipt thereof in an escrow or cash collateral account or accounts, pursuant to an agreement or agreements in form and substance reasonably satisfactory to the holders of greater than 50% of the outstanding principal amount of Qualified Debt (which escrow agreement or agreements shall provide for a release from escrow of an amount equal to any additions to Available Cash pursuant to clause (i)(g) balance of the definition of Available Cash with respect to such sale in calendar quarters of the Borrower subsequent to the calendar quarter in which such sale occurs)Qualified Debt, for the purpose of application in accordance with clause (xii) or above, and (y) all such Net Proceeds which are not then held in escrow or cash collateral accounts pursuant to subclause (iii)(x) and which have not been applied to the purchase of this productive assets in the same line of business or distributed to the holders of Qualified Debt for application to the repayment of such Qualified Debt exceed $100,000,000 in the aggregate at any time, all such Net Proceeds in excess of $100,000,000 are placed immediately upon receipt thereof in an escrow or cash collateral account or accounts, pursuant to an agreement or agreements in form and substance reasonably satisfactory to holders of greater than 50% of the outstanding principal balance of the Qualified Debt, for the purpose of application in accordance with clause (B)ii) above, and (Civ) immediately after giving effect to such sale (giving effect on a pro forma basis to any proposed retirement of Qualified Debt out of proceeds thereof), the Borrower Company could incur $1 of additional Funded Debt pursuant to Section 7.05(i);
(j) the Borrower may transfer or make contributions of Designated Acres to any Facility Subsidiary to the extent permitted pursuant to Section 7.04(a); and
(k) the Borrower and its Restricted Subsidiaries may make contributions of Property to the capital of Persons in which the Borrower directly or indirectly holds an equity or other ownership interest to the extent that such contributions constitute Investments that are permitted by the provisions of Section 7.04(isubsection 8.5(i).
Appears in 1 contract
Samples: Revolving Credit and Bridge Loan Agreement (Plum Creek Timber Co L P)
Merger; Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge or consolidate with any Person or, directly or indirectly, sell, lease or transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except that:
(a) any Restricted Subsidiary of the Borrower Company may merge with the Borrower Company (provided that the Borrower Company shall be the continuing or surviving corporation) or with any one or more other Restricted Subsidiaries;
(b) any Restricted Subsidiary of the Company may sell, lease, transfer or otherwise dispose of any of its assets to the Borrower; and any Restricted Subsidiary other than Xxxx Xxxxx Xxxxxxxx xxx Xxxx Xxxxx Xxxxx Xxxxxxx may sell, lease, transfer Company or otherwise dispose of its assets to another a Restricted Subsidiary;
(c) any Restricted Subsidiary may merge or consolidate with any other entity, provided that, immediately after giving effect to such merger or consolidation (i) the continuing or surviving entity of such merger or consolidation shall constitute a Restricted Subsidiary, (ii) no Event of Default or Material Default shall exist, and (iii) following the continuing or merger, the entity surviving entity the merger is not engaged in any business other than a Permitted Business or a Permitted Ancillary Business andprovided 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 Borrower Company and its Subsidiaries on a consolidated combined basis for the 12 months preceding such merger or consolidation does not exceed 33% of the total revenues of the Borrower Company and its Subsidiaries on a consolidated combined basis;
(d) the Borrower Company may merge or consolidate with with, or sell or dispose of all or substantially all of its assets to, any other entity, provided that (i) the Borrower shall be the continuing or surviving entity and (ii) immediately after such merger or consolidation, (A) no Event of Default or Material Event of Default shall exist, (B) the Borrower could incur at least $1 of additional Funded Debt pursuant to Section 7.05(i), and (C) the Borrower is not engaged in any business other than a Permitted Business or a Permitted Ancillary Business and, 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 total revenues of such merged or consolidated entity and its Subsidiaries on a consolidated basis;
(e) the Borrower or any Restricted Subsidiary may make dispositions of inventory in the Ordinary Course of Business;
(f) the Borrower or any Restricted Subsidiary may sell Designated Acres (or notes receivable arising from the sale of Designated Acres) for the fair value thereof as reasonably determined in good faith by the Responsible Representatives;
(g) the Borrower and its Restricted Subsidiaries may exchange Timberlands with other Persons in the Ordinary Course of Business, provided that (i) the fair value of the Timberlands plus any Net 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, (ii) such exchange would not materially and adversely affect the business, Property, condition or results of operations of the Borrower and its Restricted Subsidiaries on a consolidated basis or of the Facilities Subsidiary or impair the ability of the Borrower to perform its obligations hereunder and under any other Indebtedness, and (iii) any Properties shall be deemed sold to the extent of Net Proceeds received and such sales shall be allowed only to the extent otherwise permitted by this Section 7.02;
(h) the Borrower and its Restricted Subsidiaries may sell Properties for cash 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 $40,000,000;
(i) the Borrower and its Restricted Subsidiaries may otherwise sell Properties for cash in 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) not less than 50% of the Net Proceeds of any such sale either (x) are applied, within one year after such sale to repayment of Qualified Debt in accordance with Section 2.05(b)(ii), or (y) are applied, within one year after such sale, to the purchase of productive assets in the same line of business to be owned by the Borrower (or, if the sale is by a Restricted Subsidiary, by such Restricted Subsidiary or the Borrower), provided that, if any such sale constitutes a sale of more than 15% of the Borrower’s Tangible Assets, all the unapplied Net Proceeds of such sale less the amount, if any, of such Net Proceeds to be included in clause (i)(g) of the definition of Available Cash in the calculation thereof for the calendar quarter of the Borrower in which the sale occurs shall be placed immediately in escrow or cash collateral account or accounts, pursuant to an agreement or agreements in form and substance reasonably satisfactory to the holders of greater than 50% of the outstanding principal amount of Qualified Debt (which escrow agreement or agreements shall provide for a release from escrow of an amount equal to any additions to Available Cash pursuant to clause (i)(g) of the definition of Available Cash with respect to such sale in calendar quarters of the Borrower subsequent to the calendar quarter in which such sale occurs), for the purpose of application in accordance with clause (x) or (y) of this clause (B), 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 proceeds thereof), the Borrower could incur $1 of additional Funded Debt pursuant to Section 7.05(i);
(j) the Borrower may transfer or make contributions of Designated Acres to any Facility Subsidiary to the extent permitted pursuant to Section 7.04(a); and
(k) the Borrower and its Restricted Subsidiaries may make contributions of Property to the capital of Persons in which the Borrower directly or indirectly holds an equity or other ownership interest to the extent that such contributions constitute Investments that are permitted by the provisions of Section 7.04(i).the
Appears in 1 contract
Samples: Revolving Credit Agreement (Plum Creek Timber Co L P)
Merger; Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge or consolidate with any Person or, directly or indirectly, sell, lease or transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except that:
(a) any Restricted Subsidiary of the Borrower Company may merge with the Borrower Company (provided that the Borrower Company shall be the continuing or surviving corporation) or with any one or more other Restricted Subsidiaries;
(b) any Restricted Subsidiary of the Company may sell, lease, transfer or otherwise dispose of any of its assets to the Borrower; and any Restricted Subsidiary other than Xxxx Xxxxx Xxxxxxxx xxx Xxxx Xxxxx Xxxxx Xxxxxxx may sell, lease, transfer Company or otherwise dispose of its assets to another a Restricted Subsidiary;
(c) any Restricted Subsidiary may merge or consolidate with any other entity, provided that, immediately after giving effect to such merger or consolidation (i) the continuing or surviving entity of such merger or consolidation shall constitute a Restricted Subsidiary, (ii) no Event of Default or Material Default shall exist, and (iii) following the continuing or merger, the entity surviving entity the merger is not engaged in any business other than a Permitted Business or a Permitted Ancillary Business andprovided 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 Borrower Company and its Subsidiaries on a consolidated combined basis for the 12 months preceding such merger or consolidation does not exceed 33% of the total revenues of the Borrower Company and its Subsidiaries on a consolidated combined basis;
(d) the Borrower Company may merge or consolidate with with, or sell or dispose of all or substantially all of its assets to, any other entity, provided that (i) either (x) the Borrower Company shall be the continuing or surviving entity (in the case of such merger) or (y) the successor or acquiring entity shall be a solvent corporation or partnership organized under the laws of any state of the United States and shall expressly assume in writing all of the obligations of the Company under this Agreement, the Note Agreements, the 1994 Senior Note Agreements and the Mortgage Note Agreements, 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, the Note Agreements, the 1994 Senior Note Agreements and the Mortgage Note Agreements 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 (ii) immediately after such merger or consolidationconsolidation or such sale or other disposition, (Ax) no Event of Default or Material Event of Default shall exist, (By) the Borrower Company could incur at least $1 of additional Funded Debt pursuant to Section 7.05(isubsection 8.5(i), and (Cz) the Borrower 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 or a Permitted Ancillary Business andprovided 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 combined basis for the 12 months preceding such merger or consolidation does not exceed 33% of total revenues of such merged or consolidated entity and its Subsidiaries on a consolidated combined basis;
(e) the Borrower Company or any Restricted Subsidiary may make dispositions of inventory in the Ordinary Course of Business;
(f) the Borrower Company or any Restricted Subsidiary may sell Designated Acres (or notes receivable arising from the sale of Designated Acres) for the fair value thereof as reasonably determined in good faith by the Responsible Representatives;
(g) the Borrower Company and its Restricted Subsidiaries may exchange Timberlands with other Persons in the Ordinary Course of Business, provided that (i) the fair value of the Timberlands plus any Net 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, (ii) such exchange would not materially and adversely affect the business, Property, condition or results of operations of the Borrower Company and its Restricted Subsidiaries on a consolidated combined basis or of the Facilities Subsidiary or impair the ability of the Borrower Company to perform its obligations hereunder and under any other Indebtednessthe Note Agreements, the 1994 Senior Note Agreements and the Mortgage Note Agreements, and (iii) any Properties shall be deemed sold to the extent of Net Proceeds received and such sales shall be allowed only to the extent otherwise permitted by this Section 7.028.2;
(h) the Borrower Company and its Restricted Subsidiaries may sell Properties for cash 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 $40,000,000;20,000,000; and
(i) the Borrower Company and its Restricted Subsidiaries may otherwise sell Properties for cash in an amount not less than the fair value thereof as determined in good faith by the Responsible Representatives, if and only if: if (Ai) immediately after giving effect to such proposed sale, no condition or event shall exist which constitutes an Event of Default or Material Default, (Bii) not less than 50% of the Net Proceeds of any such sale (x) are applied, within one year 180 days after such sale to repayment of Qualified Debt Debt, with a percentage of such repayment being applied to the Loans in accordance with Section 2.05(b)(ii)an amount equal to or greater than the pro rata share of the Loans as a percentage of the outstanding principal of other Qualified Debt, or (y) are applied, within one year 180 days after such sale, to the purchase of productive assets in the same line of business to be owned by the Borrower (or, if the sale is by a Restricted Subsidiary, by such Restricted Subsidiary or the Borrower)business, provided thatthat the Company shall have notified the Agent promptly after its determination to so apply the Net Proceeds, (iii) if (x) the Net Proceeds of any such sale constitutes a sale of more than 15% of the Borrower’s Tangible Assetsexceed $50,000,000, all the unapplied and if such Net Proceeds of such sale less are not applied immediately as set forth in (ii)(x) or (y) above, then the amount, if any, entire amount of such Net Proceeds to be included in clause (i)(g) of the definition of Available Cash in the calculation thereof for the calendar quarter of the Borrower in which the sale occurs shall be are placed immediately upon receipt thereof in an escrow or cash collateral account or accounts, pursuant to an agreement or agreements in form and substance reasonably satisfactory to the holders of greater than 50% of the outstanding principal amount of Qualified Debt (which escrow agreement or agreements shall provide for a release from escrow of an amount equal to any additions to Available Cash pursuant to clause (i)(g) balance of the definition of Available Cash with respect to such sale in calendar quarters of the Borrower subsequent to the calendar quarter in which such sale occurs)Qualified Debt, for the purpose of application in accordance with clause (xii) or above, and (y) all such Net Proceeds which are not then held in escrow or cash collateral accounts pursuant to subclause (iii)(x) and which have not been applied to the purchase of this productive assets in the same line of business or distributed to the holders of Qualified Debt for application to the repayment of such Qualified Debt exceed $100,000,000 in the aggregate at any time, all such Net Proceeds in excess of $100,000,000 are placed immediately upon receipt thereof in an escrow or cash collateral account or accounts, pursuant to an agreement or agreements in form and substance reasonably satisfactory to holders of greater than 50% of the outstanding principal balance of the Qualified Debt, for the purpose of application in accordance with clause (B)ii) above, and (Civ) immediately after giving effect to such sale (giving effect on a pro forma basis to any proposed retirement of Qualified Debt out of proceeds thereof), the Borrower Company could incur $1 of additional Funded Debt pursuant to Section 7.05(i);
(j) the Borrower may transfer or make contributions of Designated Acres to any Facility Subsidiary to the extent permitted pursuant to Section 7.04(a); and
(k) the Borrower and its Restricted Subsidiaries may make contributions of Property to the capital of Persons in which the Borrower directly or indirectly holds an equity or other ownership interest to the extent that such contributions constitute Investments that are permitted by the provisions of Section 7.04(isubsection 8.5(i).
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Merger; Disposition of Assets. The Borrower Company shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge or consolidate with any Person or, directly or indirectly, sell, lease or transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except that:
(a) any Restricted Subsidiary of the Borrower Company may merge with the Borrower Company (provided that the Borrower Company shall be the continuing or surviving corporation) or with any one or more other Restricted Subsidiaries;
(b) any Restricted Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the BorrowerCompany; and any Restricted Subsidiary other than Xxxx Xxxxx Xxxxxxxx xxx Xxxx Xxxxx Xxxxx Xxxxxxx may sell, lease, transfer or otherwise dispose of its assets to another Restricted Subsidiary;
(c) any Restricted Subsidiary may merge or consolidate with any other entity, provided that, immediately after giving effect to such merger or consolidation (i) the continuing or surviving entity of such merger or consolidation shall constitute a Restricted Subsidiary, (ii) no Event of Default or Material Default shall exist, and (iii) the continuing or surviving entity is not engaged in any business other than a Permitted Business or a Permitted Ancillary Business and, 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 Borrower Company 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 Borrower Company and its Subsidiaries on a consolidated basis;
(d) the Borrower Company may merge or consolidate with any other entity, provided that (i) the Borrower Company shall be the continuing or surviving entity and (ii) immediately after such merger or consolidation, (A) no Event of Default or Material Event of Default shall exist, (B) the Borrower Company could incur at least $1 of additional Funded Debt pursuant to Section 7.05(isubsection 8.5(i), and (C) the Borrower Company is not engaged in any business other than a Permitted Business or a Permitted Ancillary Business and, 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 total revenues of such merged or consolidated entity and its Subsidiaries on a consolidated basis;
(e) the Borrower Company or any Restricted Subsidiary may make dispositions of inventory in the Ordinary Course of Business;
(f) the Borrower Company or any Restricted Subsidiary may sell Designated Acres (or notes receivable arising from the sale of Designated Acres) for the fair value thereof as reasonably determined in good faith by the Responsible Representatives;
(g) the Borrower Company and its Restricted Subsidiaries may exchange Timberlands with other Persons in the Ordinary Course of Business, provided that (i) the fair value of the Timberlands plus any Net 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, (ii) such exchange would not materially and adversely affect the business, Property, condition or results of operations of the Borrower Company and its Restricted Subsidiaries on a consolidated basis or of the Facilities Subsidiary or impair the ability of the Borrower Company to perform its obligations hereunder and under any other Indebtedness, and (iii) any Properties shall be deemed sold to the extent of Net Proceeds received and such sales shall be allowed only to the extent otherwise permitted by this Section 7.028.2;
(h) at any time after the Borrower Term Loans have been paid in full, the Company and its Restricted Subsidiaries may sell Properties for cash 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 $40,000,000;
(i) the Borrower Company and its Restricted Subsidiaries may otherwise sell Properties for cash in 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) not less than 50% of the Net Proceeds of any such sale (x) are applied, within one year 180 days after such sale to repayment of Qualified Debt in accordance with Section 2.05(b)(ii2.7(a)(i), or (y) are applied, within one year 180 days after such sale, to the purchase of productive assets in the same line of business to be owned by the Borrower Company (or, if the sale is by a Restricted Subsidiary, by such Restricted Subsidiary or the BorrowerCompany), provided that, if any such sale constitutes a sale of more than 15% of the Borrower’s Company's Tangible Assets, all the unapplied Net Proceeds of such sale less the amount, if any, of such Net Proceeds to be included in clause (i)(g) of the definition of Available Cash in the calculation thereof for the calendar quarter of the Borrower in which the sale occurs shall be placed immediately in escrow or cash collateral account or accounts, pursuant to an agreement or agreements in form and substance reasonably satisfactory to the holders of greater than 50% of the outstanding principal amount of Qualified Debt (which escrow agreement or agreements shall provide for a release from escrow of an amount equal to any additions to Available Cash pursuant to clause (i)(g) of the definition of Available Cash with respect to such sale in calendar quarters of the Borrower subsequent to the calendar quarter in which such sale occurs)Debt, for the purpose of application in accordance with clause (x) or (y) of this clause (B), 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 proceeds thereof), the Borrower Company could incur $1 of additional Funded Debt pursuant to Section 7.05(isubsection 8.5(i);
(j) the Borrower Company and its Restricted Subsidiaries may make the Merger-Related Contributions; and
(k) the Company may transfer or make contributions of Designated Acres to any Facility Subsidiary to the extent permitted pursuant to Section 7.04(a); and
(k) the Borrower and its Restricted Subsidiaries may make contributions of Property to the capital of Persons in which the Borrower directly or indirectly holds an equity or other ownership interest to the extent that such contributions constitute Investments that are permitted by the provisions of Section 7.04(i8.4(a).
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