Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary of the Borrower (including pursuant to any Division), except that this Section 6.05 shall not prohibit: (i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions of cash and Permitted Investments, in each case in the ordinary course of business and in accordance with the Approved Budget; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) or; (c) the Specified Store Closing Sales; (d) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding; (e) licensing and cross-licensing arrangements involving any technology or other Intellectual Property of the Borrower or any Subsidiary Guarantor in the ordinary course of business; (f) the issuance of Qualified Capital Stock by the Borrower to Intermediate Holdings; (g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor; (h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor; (i) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Subsidiaries; (j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries; (k) the expiration of any option agreement in respect of real or personal property; (l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or (m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 2 contracts
Samples: Debtor in Possession Credit Agreement (Tuesday Morning Corp/De), Commitment Letter (Tuesday Morning Corp/De)
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)Agent, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger a transaction involving (A) the Borrower or consolidation involving (B) any Subsidiary GuarantorLoan Party, a Subsidiary Guarantor Loan Party shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, 6.04 or (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrower;
(c) Dispositions among the Specified Store Closing SalesBorrower and its Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a person that is not a Loan Party shall be for book value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrower), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables (i) in the ordinary course of business (i) and not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by the Borrower or any Restricted Subsidiary not otherwise permitted by this Section 6.05 in an aggregate amount not to exceed, in any fiscal year, the greater of (i) $100.0 million and (ii) 5% of Consolidated Total Assets; provided that (i) the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of the Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) and clause (ii)(z) of the proviso to Section 6.05(dd) that is at that time outstanding, not in excess of $25.0 million in each case, shall be deemed to be cash) and (ii) the Net Proceeds thereof are applied in accordance with Section 2.11(b); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing;
(h) Dispositions by the Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, on a Pro Forma Basis for such disposition of a line of business or manufacturing facility and the consummation of such Permitted Business Acquisition, the Total Leverage Ratio does not exceed 5.00:1.00;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 6.04, and (iii) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory or other property of the Borrower and the Restricted Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrower;
(gn) sales of Equity Interests of any Subsidiary of the Borrower; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 2 contracts
Samples: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary of the Borrower (including pursuant to any Division), except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty (other than the Collateral), whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary [reserved] or (iv) Dispositions of cash and Permitted Investments, in each case in the ordinary course of business and in accordance with the Approved Budget;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) or);
(c) the Specified Store Closing Sales;
(d) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(e) licensing and cross-licensing arrangements involving any technology or other Intellectual Property of the Borrower or any Subsidiary Guarantor in the ordinary course of business;
(f) the issuance of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of property Intellectual Property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Subsidiaries;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries[reserved];
(k) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions (other than Dispositions of Collateral) in connection with the outsourcing of services in the ordinary course of business.
Appears in 2 contracts
Samples: Senior Secured Super Priority Debtor in Possession Delayed Draw Term Loan Agreement (Tuesday Morning Corp/De), Debtor in Possession Delayed Draw Term Loan Agreement (Franchise Group, Inc.)
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory inventory, goods and equipment in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty or property no longer used or useful in the business, whether now owned or hereafter acquired, in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the any Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments for fair market value in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto thereto, no Event of Default shall have occurred and be continuing, (i) the merger of any Restricted Subsidiary of Holdings Parent (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Restricted Subsidiary of the Lead Borrower) into the Lead Borrower in a transaction in which the Lead Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)entity, (ii) the merger or consolidation of any Restricted Subsidiary with or into any other Restricted Subsidiary; provided that in any such merger a transaction involving (A) the Lead Borrower, (B) Ollie’s or consolidation involving (C) any Subsidiary GuarantorLoan Party, the Lead Borrower (in the case of a transaction involving it), Ollie’s (in the case of a transaction involving it) or a Subsidiary Guarantor Loan Party (in all other cases) shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the a Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrowers;
(c) Dispositions among the Specified Store Closing SalesBorrowers and their Restricted Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a person that is not a Loan Party shall be for fair market value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrowers), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by any Borrower or any Restricted Subsidiary for fair market value not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition in excess of $7.5 million shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Secured Obligations or that are owed to a Borrower or a Subsidiary) of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $12.5 million in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing;
(h) Dispositions by any Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that (i) any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date (and, to the extent the Borrowers or any Restricted Subsidiary enter into a legally binding commitment within such 270-day period, within 90 days after the end of such 270-day period) such assets were acquired by such Borrower or such Restricted Subsidiary and (ii) on a Pro Forma Basis for such disposition of a line of business and the consummation of such Permitted Business Acquisition, the Lead Borrower is in compliance with the Total Leverage Condition;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 5.15, and (iii) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of a Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property of the any Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory of the Borrowers and the Restricted Subsidiaries; provided that such inventory does not constitute Eligible Inventory, Eligible In-Transit Inventory or Eligible Letter of Credit Inventory hereunder;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsParent;
(gn) sales of Equity Interests of any Restricted Subsidiary of the BorrowerBorrowers; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower Borrowers or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds net proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Borrower Borrowers and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower Borrowers and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary of the Borrower (including pursuant to any Division), except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty (other than Inventory), whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person (which Person shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04Person, (iii) the liquidation or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous the assets of such liquidating or dissolving Subsidiary are transferred to the LendersBorrower or a Subsidiary Guarantor, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) or);
(c) Dispositions among the Specified Store Closing SalesBorrower and the Subsidiary Guarantors (upon voluntary liquidation or otherwise);
(d) [reserved];
(e) to the extent constituting a Disposition, Liens permitted by Section 6.02, Investments permitted by Section 6.04 (other than Section 6.04(p)), and Restricted Payments permitted by Section 6.06 (other than Section 6.06(f));
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by the Borrower or any Subsidiary of assets not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection and substantially contemporaneously with such Disposition, and (y) any securities received by such Subsidiary from such transferee that are converted by such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) substantially contemporaneously following the closing of the applicable Disposition, in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that prior to or concurrently with any such Disposition involving Borrowing Base Collateral, an updated Borrowing Base Certificate (based on the Borrowing Base Certificate most recently provided or required to be provided as of that date by the Borrower) shall have been provided to the Administrative Agent setting forth the adjusted figures thereon on a pro forma basis for such Disposition and no breach of Section 6.10 shall exist after giving pro forma effect thereto;
(h) from and after the date that is two (2) years after the Second Amendment Effective Date, Dispositions by the Borrower or any Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, the Payment Conditions are satisfied at the time of such Disposition; and provided further that prior to or concurrently with any such Disposition involving Borrowing Base Collateral, an updated Borrowing Base Certificate (based on the Borrowing Base Certificate most recently provided or required to be provided as of that date by the Borrower) shall have been provided to the Administrative Agent setting forth the adjusted figures thereon on a pro forma basis for such Disposition and no breach of Section 6.10 shall exist after giving pro forma effect thereto;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04; provided that (i) if the continuing or surviving Person is a Loan Party or a Subsidiary of a Loan Party, such Loan Party or Subsidiary shall have complied with its obligations under Section 5.09 (if any), and (ii) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the continuing or surviving Person (which Person shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the Borrower or any Subsidiary Guarantor in the ordinary course of business;
(f) the issuance of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of property in the ordinary course of business consisting and not interfering in any material respect with the ordinary conduct of or materially detracting from the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct value of the business of the Borrower and the its Subsidiaries;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(k) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory inventory, goods and equipment in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty or property no longer used or useful in the business, whether now owned or hereafter acquired, in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the any Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments for fair market value in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto thereto, no Event of Default shall have occurred and be continuing, (i) the merger of any Restricted Subsidiary of Holdings Parent (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Restricted Subsidiary of the Lead Borrower) into the Lead Borrower in a transaction in which the Lead Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)entity, (ii) the merger or consolidation of any Restricted Subsidiary with or into any other Restricted Subsidiary; provided that in any such merger a transaction involving (A) the Lead Borrower, (B) Xxxxx’s or consolidation involving (C) any Subsidiary GuarantorLoan Party, the Lead Borrower (in the case of a transaction involving it), Xxxxx’s (in the case of a transaction involving it) or a Subsidiary Guarantor Loan Party (in all other cases) shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the a Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrowers;
(c) Dispositions among the Specified Store Closing SalesBorrowers and their Restricted Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a person that is not a Loan Party shall be for fair market value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrowers), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by any Borrower or any Restricted Subsidiary for fair market value not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition in excess of $7.5 million shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Secured Obligations or that are owed to a Borrower or a Subsidiary) of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $12.5 million in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing;
(h) Dispositions by any Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that (i) any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date (and, to the extent the Borrowers or any Restricted Subsidiary enter into a legally binding commitment within such 270-day period, within 90 days after the end of such 270-day period) such assets were acquired by such Borrower or such Restricted Subsidiary and (ii) on a Pro Forma Basis for such disposition of a line of business and the consummation of such Permitted Business Acquisition, the Lead Borrower is in compliance with the Total Leverage Condition;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 5.15, and (iii) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of a Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property of the any Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory of the Borrowers and the Restricted Subsidiaries; provided that such inventory does not constitute Eligible Inventory, Eligible In-Transit Inventory or Eligible Letter of Credit Inventory hereunder;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsParent;
(gn) sales of Equity Interests of any Restricted Subsidiary of the BorrowerBorrowers; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower Borrowers or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds net proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Borrower Borrowers and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower Borrowers and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Mergers, Consolidations and Dispositions. Merge (a) Wind up, liquidate, dissolve, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it, or Dispose sell, transfer, lease or otherwise dispose of (in one (1) transaction or in a series of related transactions) all or any part of its substantially all the assets (whether now owned or hereafter acquired), ) of the Borrowers or Dispose of any less than all the Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Lead Borrower, except that this Section 6.05 shall not prohibitthat:
(i) (A) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets or all of the Disposition Equity Interests of inventory any Restricted Subsidiary (upon voluntary winding up, liquidation, dissolution or otherwise) to the Lead Borrower or to any other Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Lead Borrower or a Subsidiary Guarantor and equipment (ii) to the extent constituting an Investment, such Investment must be an Investment in the ordinary course or Indebtedness of business by a Restricted Subsidiary which is not a Loan Party permitted to be incurred in accordance with Sections 6.01 and 6.04, respectively, (B) the Borrower may sell, transfer or otherwise dispose of all or substantially all of its assets or all of the Equity Interests of any Restricted Subsidiary to any Subsidiary Guarantors, and (C) any Foreign Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets or the Equity Interests of any Restricted Subsidiary (upon voluntary winding up, liquidation, dissolution or otherwise) to the Lead Borrower, any Subsidiary Guarantor or any other Foreign Subsidiary;
(ii) (I) any Restricted Subsidiary may merge, amalgamate or consolidate with or wind up, liquidate or dissolve into (i) the Lead Borrower; provided that the Lead Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Lead Borrower pursuant to documents reasonably acceptable to the Administrative Agent or (ii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Guarantor or any Borrower is merging with another Restricted Subsidiary that is not a Subsidiary Guarantor (A) the Subsidiary Guarantor shall be the continuing or surviving Person, (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party permitted to be incurred in accordance with Sections 6.01 and 6.04, respectively and (C) to the extent constituting a Disposition, such Disposition must be permitted hereunder or (II) any Foreign Subsidiary may merge, amalgamate or consolidate with or wind up, liquidate or dissolve into (i) any other Foreign Subsidiary, (ii) the Lead Borrower; provided that the Lead Borrower shall be the continuing entity or (iii) any one or more other Restricted Subsidiaries; provided that the Restricted Subsidiary shall be the continuing or surviving Person;
(iii) any Subsidiary of the Lead Borrower may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect; and
(iv) any merger, consolidation or amalgamation in connection with an Investment permitted under Section 6.04(f).
(b) Make any Disposition not otherwise permitted under paragraph (a) above, except for:
(i) Dispositions of surplusinventory, obsoletedamaged, used obsolete or worn out propertyassets and scrap, whether now owned or hereafter acquired, in each case disposed of in the ordinary course of business by business;
(ii) Dispositions, transfers and other distributions of equipment (A) in a transaction where such equipment is exchanged for credit against the Borrower purchase price of similar replacement equipment or any Subsidiary, (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment;
(iii) the leasing or subleasing of real property (A) Investments permitted by Section 6.04 and (B) Restricted Payments permitted by Section 6.06 (in the ordinary course of business each case other than by the Borrower reference to this Section 6.05 (or any Subsidiary or clause under this Section 6.05));
(iv) Dispositions of cash and Permitted InvestmentsCash Equivalents;
(v) sales, Dispositions or contributions of property (A) between Loan Parties (other than Holdings), (B) between Restricted Subsidiaries (other than Loan Parties), (C) by Restricted Subsidiaries that are not Loan Parties to the Loan Parties (other than Holdings) or (D) by Loan Parties to any Restricted Subsidiary that is not a Loan Party; provided that, in the case of clause (D), (1) the portion (if any) of any such Disposition made for less than fair market value and any non-cash consideration received in exchange for any such Disposition, shall in each case constitute an Investment in such Restricted Subsidiary and (2) the value of the property Disposed must be an amount that, if treated as an Investment, would be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04;
(vi) Dispositions in the ordinary course of business consisting of abandonment, assignment or transfer of all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights that, in accordance with the Approved Budgetgood faith determination of the Lead Borrower, are uneconomical, negligible, obsolete or otherwise not material in the conduct of its business;
(bvii) if Dispositions of property formerly leased by the Lead Borrower or its Restricted Subsidiaries and acquired by the Lead Borrower and sold as an alternative to terminating the lease on such property;
(viii) Dispositions of current assets or receivables owned by any Foreign Subsidiary, including in connection with factoring transactions or receivables financings, in the ordinary course of business;
(ix) the transfer or Disposition of property pursuant to sale and leaseback transactions; provided that (A) at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assetscontinuing or would result therefrom, (B) Intermediate Holdings or the aggregate fair market value of all property disposed of in reliance on this clause shall not exceed $5,000,000 since the Closing Date and (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation is for consideration at least 75 % of which is cash or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orCash Equivalents;
(cI) Casualty Events and (II) the Specified Store Closing Salestransfer of property that is the subject of a Casualty Event upon receipt of insurance or other proceeds arising from such Casualty Event;
(dxi) Dispositions the Disposition of receivables investments in joint ventures to the ordinary course of business (i) not as part of an accounts receivables financing transaction extent required by, or (ii) made pursuant to, any buy/sell arrangement or any similar binding arrangement between joint venture parties, in connection with each case, that is in effect on the collection, settlement or compromise thereof in a bankruptcy or similar proceedingClosing Date;
(exii) licensing and cross-licensing arrangements involving any technology licenses or other Intellectual Property sublicenses of the Borrower or any Subsidiary Guarantor intellectual property in the ordinary course of business;
(fxiii) the issuance leases of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of real property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Subsidiariesbusiness;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(kxiv) the expiration Borrowers and any of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower their respective Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services purchase and sell inventory in the ordinary course of business.;
(xv) any Disposition or series of related Dispositions having a value not to exceed $3,000,000 in any period of twelve consecutive months most recently ended;
(xvi) any Disposition as to which (A) at least 75 % of the consideration is cash or consists of Cash Equivalents, (B) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of, (C) at the time of such transaction both before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (D) the Lead Borrower shall have delivered a certificate of a Financial Officer, certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form and substance satisfactory to the Administrative Agent; provided that the amount of:
(1) any liabilities (as shown on the Lead Borrower’s or a Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Lead Borrower or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee,
(2) any notes or other obligations or other securities or assets received by the Lead Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received), and
(3) any Designated Non-cash Consideration received by the Lead Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed $5,000,000 at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of Section 6.05(b)(xvi)(A); and
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division), except that this Section 6.05 shall not prohibit:
(a) (i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the LendersBorrower, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate HoldingsHoldings or (v) orany Subsidiary of the Borrower that is an LLC may consummate a Division as the Dividing Person if (A) immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held at such time by one or more Division Successors that are Wholly Owned Restricted Subsidiaries and (B) if the Subsidiary of the Borrower consummating such Division as a Dividing Person is a Subsidiary Guarantor, then the Division Successor of such Division shall cause the Collateral and Guarantee Requirement to be satisfied with respect to such Division Successor in accordance with Section 5.09(b) and (d) and clause (f) of the definition of “Collateral and Guarantee Requirement” (or to the extent such Division Successor is already a Subsidiary Guarantor it shall continue to be Subsidiary Guarantor after giving effect to such Division); provided that, notwithstanding anything to the contrary in this Agreement, any Subsidiary of the Borrower which is a Division Successor resulting from a Division of assets of a Material Subsidiary may not be deemed to be an Immaterial Subsidiary at the time of or in connection with the applicable Division;
(c) Dispositions among the Specified Store Closing SalesBorrower and its Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a Person that is not a Loan Party shall be for book value (as reasonably determined by such Person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrower), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by the Borrower or any Restricted Subsidiary of assets not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition and (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition of any assets other than Current Asset Collateral or real estate having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $15.0 million in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that prior to or concurrently with any such Disposition of Current Asset Collateral, an updated Borrowing Base Certificate (based on the Borrowing Base Certificate most recently provided or required to be provided as of that date by the Borrower) shall have been provided to the Administrative Agent setting forth the adjusted figures thereon on a Pro Forma Basis for such Disposition;
(h) Dispositions by the Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, the Payment Conditions are satisfied at the time of such Disposition;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving Person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 6.04, and (iii) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory or other property of the issuance Borrower and the Restricted Subsidiaries determined by the management of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower no longer useful or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of property necessary in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct operation of the business of the Borrower and the or any of its Subsidiaries;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(k) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)Agent, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation a transaction involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) or);
(c) Dispositions among the Specified Store Closing SalesBorrower and its Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a Person that is not a Loan Party shall be for book value (as reasonably determined by such Person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrower), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by the Borrower or any Restricted Subsidiary of assets not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition and (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition of any assets other than Current Asset Collateral or real estate having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $15.0 million in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that prior to or concurrently with any such Disposition of Current Asset Collateral, an updated Borrowing Base Certificate (based on the Borrowing Base Certificate most recently provided or required to be provided as of that date by the Borrower) shall have been provided to the Administrative Agent setting forth the adjusted figures thereon on a Pro Forma Basis for such Disposition;
(h) Dispositions by the Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, the Payment Conditions are satisfied at the time of such Disposition;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving Person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 6.04, and (iii) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory or other property of the Borrower and the Restricted Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrower;
(gn) sales of Equity Interests of any Subsidiary of the Borrower; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Guarantor which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower or another Subsidiary GuarantorGuarantor or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds net proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge (a) Wind up, liquidate, dissolve, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it, or Dispose sell, transfer, lease or otherwise dispose of (in one (1) transaction or in a series of related transactions) all or any part of its substantially all the assets (whether now owned or hereafter acquired), ) of the Borrowers or Dispose of any less than all the Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Lead Borrower, except that this Section 6.05 shall not prohibitthat:
(i) (A) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets or all of the Disposition Equity Interests of inventory any Restricted Subsidiary (upon voluntary winding up, liquidation, dissolution or otherwise) to the Lead Borrower or to any other Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Lead Borrower or a Subsidiary Guarantor and equipment (ii) to the extent constituting an Investment, such Investment must be an Investment in the ordinary course or Indebtedness of business by a Restricted Subsidiary which is not a Loan Party permitted to be incurred in accordance with Sections 6.01 and 6.04, respectively, (B) the Borrower may sell, transfer or otherwise dispose of all or substantially all of its assets or all of the Equity Interests of any Restricted Subsidiary to any Subsidiary Guarantors, and (C) any Foreign Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets or the Equity Interests of any Restricted Subsidiary (upon voluntary winding up, liquidation, dissolution or otherwise) to the Lead Borrower, any Subsidiary Guarantor or any other Foreign Subsidiary;
(ii) (I) any Restricted Subsidiary may merge, amalgamate or consolidate with or wind up, liquidate or dissolve into (i) the Lead Borrower; provided that the Lead Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Lead Borrower pursuant to documents reasonably acceptable to the Administrative Agent or (ii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Guarantor or any Borrower is merging with another Restricted Subsidiary that is not a Subsidiary Guarantor (A) the Subsidiary Guarantor shall be the continuing or surviving Person, (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party permitted to be incurred in accordance with Sections 6.01 and 6.04, respectively and (C) to the extent constituting a Disposition, such Disposition must be permitted hereunder or (II) any Foreign Subsidiary may merge, amalgamate or consolidate with or wind up, liquidate or dissolve into (i) any other Foreign Subsidiary, (ii) the Lead Borrower; provided that the Lead Borrower shall be the continuing entity or (iii) any one or more other Restricted Subsidiaries; provided that the Restricted Subsidiary shall be the continuing or surviving Person;
(iii) any Subsidiary of the Lead Borrower may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect; and
(iv) any merger, consolidation or amalgamation in connection with an Investment permitted under Section 6.04(f).
(b) Make any Disposition not otherwise permitted under paragraph (a) above, except for:
(i) Dispositions of surplusinventory, obsoletedamaged, used obsolete or worn out propertyassets and scrap, whether now owned or hereafter acquired, in each case disposed of in the ordinary course of business by business;
(ii) Dispositions, transfers and other distributions of equipment (A) in a transaction where such equipment is exchanged for credit against the Borrower purchase price of similar replacement equipment or any Subsidiary, (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment;
(iii) the leasing or subleasing of real property (A) Investments permitted by Section 6.04 and (B) Restricted Payments permitted by Section 6.06 (in the ordinary course of business each case other than by the Borrower reference to this Section 6.05 (or any Subsidiary or clause under this Section 6.05));
(iv) Dispositions of cash and Permitted InvestmentsCash Equivalents;
(v) sales, Dispositions or contributions of property (A) between Loan Parties (other than Holdings), (B) between Restricted Subsidiaries (other than Loan Parties), (C) by Restricted Subsidiaries that are not Loan Parties to the Loan Parties (other than Holdings) or (D) by Loan Parties to any Restricted Subsidiary that is not a Loan Party; provided that, in the case of clause (D), (1) the portion (if any) of any such Disposition made for less than fair market value and any non-cash consideration received in exchange for any such Disposition, shall in each case constitute an Investment in such Restricted Subsidiary and (2) the value of the property Disposed must be an amount that, if treated as an Investment, would be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04;
(vi) Dispositions in the ordinary course of business consisting of abandonment, assignment or transfer of all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights that, in accordance with the Approved Budgetgood faith determination of the Lead Borrower, are uneconomical, negligible, obsolete or otherwise not material in the conduct of its business;
(bvii) if Dispositions of property formerly leased by the Lead Borrower or its Restricted Subsidiaries and acquired by the Lead Borrower and sold as an alternative to terminating the lease on such property;
(viii) Dispositions of current assets or receivables owned by any Foreign Subsidiary, including in connection with factoring transactions or receivables financings, in the ordinary course of business;
(ix) the transfer or Disposition of property pursuant to sale and leaseback transactions; provided that (A) at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assetscontinuing or would result therefrom, (B) Intermediate Holdings or the aggregate fair market value of all property disposed of in reliance on this clause shall not exceed $5,000,000 since the Closing Date and (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation is for consideration at least 75 % of which is cash or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orCash Equivalents;
(cI) Casualty Events and (II) the Specified Store Closing Salestransfer of property that is the subject of a Casualty Event upon receipt of insurance or other proceeds arising from such Casualty Event;
(dxi) Dispositions the Disposition of receivables investments in joint ventures to the ordinary course of business (i) not as part of an accounts receivables financing transaction extent required by, or (ii) made pursuant to, any buy/sell arrangement or any similar binding arrangement between joint venture parties, in connection with each case, that is in effect on the collection, settlement or compromise thereof in a bankruptcy or similar proceedingClosing Date;
(exii) licensing and cross-licensing arrangements involving any technology licenses or other Intellectual Property sublicenses of the Borrower or any Subsidiary Guarantor intellectual property in the ordinary course of business;
(fxiii) the issuance leases of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of real property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Subsidiariesbusiness;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(kxiv) the expiration Borrowers and any of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower their respective Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services purchase and sell inventory in the ordinary course of business;
(xv) any Disposition or series of related Dispositions having a value not to exceed $3,000,000 in any period of twelve consecutive months most recently ended;
(xvi) any Disposition as to which (A) at least 75 % of the consideration is cash or consists of Cash Equivalents, (B) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of, (C) at the time of such transaction both before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (D) the Lead Borrower shall have delivered a certificate of a Financial Officer, certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form and substance satisfactory to the Administrative Agent; provided that the amount of:
(1) any liabilities (as shown on the Lead Borrower’s or a Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Lead Borrower or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee,
(2) any notes or other obligations or other securities or assets received by the Lead Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received), and
(3) any Designated Non-cash Consideration received by the Lead Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed $5,000,000 at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of Section 6.05(b)(xvi)(A); and
(xvii) Dispositions between or among Foreign Subsidiaries. To the extent that any Collateral is sold or otherwise Disposed of as permitted by this Section 6.05(b) (other than to Holdings or any Restricted Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents and such Liens shall attach to the proceeds thereof, and the Administrative Agent and the Collateral Agent are hereby authorized by the Lenders to take any actions deemed appropriate in order to effect and/or evidence the foregoing.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary of the Borrower (including pursuant to any Division), except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty (other than Inventory), whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders) (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04Person, (iii) the liquidation or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous the assets of such liquidating or dissolving Subsidiary are transferred to the LendersBorrower or a Subsidiary Guarantor, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) or);
(c) Dispositions among the Specified Store Closing SalesBorrower and the Subsidiary Guarantors (upon voluntary liquidation or otherwise);
(d) [reserved];
(e) to the extent constituting a Disposition, Liens permitted by Section 6.02, Investments permitted by Section 6.04 (other than Section 6.04(p)), and Restricted Payments permitted by Section 6.06 (other than Section 6.06(e));
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by the Borrower or any Subsidiary of assets not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection and substantially contemporaneously with such Disposition, and (y) any securities received by such Subsidiary from such transferee that are converted by such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) substantially contemporaneously following the closing of the applicable Disposition, in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that, Dispositions made pursuant to this Section 6.05(g) shall not exceed $2.5 million in aggregate in any fiscal year;
(h) Dispositions by the Borrower or any Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, Dispositions made pursuant to this Section 6.05(h) shall not exceed $2.5 million in aggregate in any fiscal year;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04; provided that (i) if the continuing or surviving Person is a Loan Party or a Subsidiary of a Loan Party, such Loan Party or Subsidiary shall have complied with its obligations under Section 5.09 (if any), and (ii) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders);
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the Borrower or any Subsidiary Guarantor in the ordinary course of businessbusiness and not interfering in any material respect with the ordinary conduct of or materially detracting from the value of the business of the Borrower and its Subsidiaries;
(fk) Dispositions of Inventory or other property of the Borrower and the Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries, provided that, Dispositions made pursuant to this Section 6.05(k) shall not exceed $5.0 million in aggregate in any fiscal year;
(l) [reserved];
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrower;
(gn) sales of Equity Interests of any Subsidiary of the Borrower; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Guarantor, the purchaser shall be the Borrower or another Subsidiary GuarantorGuarantor or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property, provided that, Dispositions made pursuant to this Section 6.05(o) shall not exceed $5.0 million in aggregate in any fiscal year;
(p) leases, subleases, licenses or sublicenses of property (other than intellectual property) in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds net proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of managementextent required by, or consultants of made pursuant to, buy/sell arrangements between the Borrower joint venture parties set forth in, joint venture arrangements and the Subsidiariessimilar binding arrangements;
(kt) [reserved];
(u) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(lw) [reserved];
(x) any Subsidiary surrender or waiver of contractual rights or the Borrower may consummate a mergersettlement, dissolution, liquidation release or consolidation, the purpose surrender of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services contractual rights or other litigation claims in the ordinary course of business;
(y) [reserved];
(z) any change in form of entity of any Subsidiary if the Borrower determines in good faith that such change in form is in the best interests of the Borrower; provided that the Borrower and such Subsidiary shall substantially concurrently with such change in form take all actions necessary, if any, to preserve the perfection of the Administrative Agent’s Lien on the Equity Interests in and Property of such Subsidiary (other than any Excluded Assets);
(aa) as long as no Event of Default then exists or would arise therefrom, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis and not to an Affiliate; provided that such store closures and related Inventory dispositions shall not exceed, in any fiscal year 20.0% of the number of the Loan Parties’ stores as of the beginning of such fiscal year (net of store relocations wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings shall be paid to a Deposit Account that is subject to a Control Agreement; and
(bb) the Plan Sale Leaseback in accordance with the Plan of Reorganization. Notwithstanding anything to the contrary contained above in this Section 6.05, (i) no Disposition or series of related Dispositions in excess of $1.0 million shall be permitted by this Section 6.05 (other than Dispositions pursuant to paragraphs (a)(ii), (b), (c), (i), (k), (r), (s), (u), or (v)) unless such Disposition is for fair market value (as reasonably determined by the Borrower), (ii) no Disposition shall be permitted by paragraphs (k) or (aa) of this Section 6.05 without receiving at least 75% cash consideration for each such Disposition, (iii) no Disposition or series of related Dispositions in excess of $1.5 million shall be permitted by paragraph (h) of this Section 6.05 unless such Disposition is for at least 75% cash consideration; provided that for purposes of the 75% cash consideration requirement in the foregoing clause (iii), (w) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection and substantially contemporaneously with such Disposition and (y) any securities received by such Subsidiary from such transferee that are converted by such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) substantially contemporaneously with the closing of the applicable Disposition, in each case, shall be deemed to be cash, (iv) [reserved], and (v) in no event shall (x) any Loan Party Dispose of any Material Intellectual Property to any Person that is not a Loan Party other than to the extent constituting non-exclusive outbound licenses of patents, copyrights, trademarks and other intellectual property rights granted by a Loan Party in the ordinary course of business and not interfering in any respect with the ordinary conduct of or materially detracting from the value of the Term Loan Priority Collateral or the business of the Borrower and its Subsidiaries or (y) any Subsidiary that is not a Loan Party own or develop any Material Intellectual Property.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the any Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Subsidiary of the Lead Borrower) into the Lead Borrower in a transaction in which the Lead Borrower is the surviving or resulting entity or the surviving or resulting Person person expressly assumes the obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)Agent, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger a transaction involving (A) the Borrowers or consolidation involving (B) any Subsidiary GuarantorLoan Party, a Subsidiary Guarantor Loan Party shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, 6.04 or (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the a Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrowers;
(c) Dispositions among the Specified Store Closing SalesBorrowers and their Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a person that is not a Loan Party shall be for book value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrowers), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by any Borrower or any Restricted Subsidiary of (i) Revolving Priority Collateral in an aggregate amount after the Amendment No. 1 Effectiveness Date not to exceed $10.0 million and (ii) Term Priority Collateral, in each case, not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $25.0 million in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that prior to or concurrently with any such Disposition of Revolving Priority Collateral, an updated Borrowing Base Certificate (based on the Borrowing Base Certificate most recently provided or required to be provided as of that date by the Lead Borrower) shall have been provided to the Administrative Agent setting forth the adjusted figures thereon on a Pro Forma Basis for such Disposition;
(h) Dispositions by any Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by such Borrower or such Subsidiary; and provided further that, the Payment Conditions are satisfied at the time of such Disposition;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 6.04, and (iii) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of a Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the any Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory or other property of the Borrowers and the Restricted Subsidiaries determined by the management of the Borrowers to be no longer useful or necessary in the operation of the business of the Borrowers or any of their Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrowers;
(gn) sales of Equity Interests of any Subsidiary of the BorrowerBorrowers; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower Borrowers or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Borrower Borrowers and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower Borrowers and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(lw) Dispositions of Unrestricted Subsidiaries;
(x) any Restricted Subsidiary of the Borrower Borrowers may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or;
(my) Dispositions permitted by Section 6.04 (other than Section 6.04(p)) and Section 6.06 (other than Section 6.06(h)) and Liens permitted by Section 6.02;
(z) the Disposition of the asset identified to the Administrative Agent prior to the Closing Date;
(aa) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;
(bb) Dispositions in connection with the outsourcing of services in the ordinary course of business; and
(cc) Dispositions (including by capital contribution) of accounts receivable and related assets, or participations therein, in connection with any Receivables Facility permitted by Section 6.01(z). Notwithstanding anything to the contrary contained above in this Section 6.05, (i) no Disposition in excess of $15.0 million shall be permitted by this Section 6.05 (other than Dispositions pursuant to clause (a)(ii), (a)(iii), (b), (c), (i), (k), (l), (r), (s), (t) (u), (v), (w), (x), (aa), (bb) or (cc) (to the extent such Disposition is not required to be for fair market value)) unless such Disposition is for fair market value (as reasonably determined by the Borrowers) and (ii) no Disposition shall be permitted by paragraph (d) or (k) of this Section 6.05 unless such Disposition is for at least 75% cash consideration and (iii) no Disposition in excess of $15.0 million shall be permitted by paragraph (h) of this Section 6.05 unless such Disposition is for at least 75% cash consideration; provided that for purposes of the 75% cash consideration requirement in the foregoing clauses (ii) and (iii), (w) the amount of any Indebtedness or other liabilities of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition, and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $25.0 million (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), in each case, shall be deemed to be cash.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory inventory, goods and equipment in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty or property no longer used or useful in the business, whether now owned or hereafter acquired, in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the any Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments for fair market value in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto thereto, no Event of Default shall have occurred and be continuing, (i) the merger of any Restricted Subsidiary of Holdings Parent (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Restricted Subsidiary of the Lead Borrower) into the Lead Borrower in a transaction in which the Lead Borrower is the surviving or resulting entity or the surviving or resulting Person person expressly assumes the obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)Agent, (ii) the merger or consolidation of any Restricted Subsidiary with or into any other Restricted Subsidiary; provided that in any such merger a transaction involving (A) the Borrowers or consolidation involving (B) any Subsidiary GuarantorLoan Party, a Borrower (in the case of a transaction involving it) or a Subsidiary Guarantor Loan Party (in all other cases) shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the a Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrowers;
(c) Dispositions among the Specified Store Closing SalesBorrowers and their Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a person that is not a Loan Party shall be for fair market value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrowers), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by any Borrower or any Restricted Subsidiary for fair market value not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition in excess of $7.5 million shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to a Borrower or a Subsidiary) of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $12.5 million in each case, shall be deemed to be cash); provided further that (x) immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b);
(h) Dispositions by any Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that (i) any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date (and, to the extent the Borrowers or any Restricted Subsidiary enter into a legally binding commitment within such 270-day period, within 90 days after the end of such 270-day period) such assets were acquired by such Borrower or such Restricted Subsidiary, (ii) on a Pro Forma Basis for such disposition of a line of business and the consummation of such Permitted Business Acquisition, the Total Leverage Ratio does not exceed 4.50:1.00 as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.04 and (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 5.14, and (iii) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of a Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property of the any Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory of the Borrowers and the Restricted Subsidiaries; provided that such inventory does not constitute Eligible Inventory (as defined in the ABL Credit Agreement), Eligible In-Transit Inventory (as defined in the ABL Credit Agreement) or Eligible Letter of Credit Inventory (as defined in the ABL Credit Agreement);
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsParent;
(gn) sales of Equity Interests of any Restricted Subsidiary of the BorrowerBorrowers; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower Borrowers or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Borrower Borrowers and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower Borrowers and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the any Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Subsidiary of the Lead Borrower) into the Lead Borrower in a transaction in which the Lead Borrower is the surviving or resulting entity or the surviving or resulting Person person expressly assumes the obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)Agent, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger a transaction involving (A) the Borrowers or consolidation involving (B) any Subsidiary GuarantorLoan Party, a Subsidiary Guarantor Loan Party shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, 6.04 or (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the a U.S. Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrowers;
(c) Dispositions among the Specified Store Closing SalesBorrowers and their Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a (x) person that is not a Loan Party or (y) the U.K. Borrower shall be for book value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrowers), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by any Borrower or any Restricted Subsidiary of (i) Revolving Priority Collateral in an aggregate amount after the Amendment No. 1 Effectiveness Date not to exceed $10.0 million and (ii) Term Priority Collateral, in each case, not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $25.0 million in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that prior to or concurrently with any such Disposition of Revolving Priority Collateral, an updated Borrowing Base Certificate (based on the Borrowing Base Certificate most recently provided or required to be provided as of that date by the Lead Borrower) shall have been provided to the Administrative Agent setting forth the adjusted figures thereon on a Pro Forma Basis for such Disposition;
(h) Dispositions by any Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by such Borrower or such Subsidiary; and provided further that, the Payment Conditions are satisfied at the time of such Disposition;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 6.04, and (iii) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of a Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the any Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory or other property of the Borrowers and the Restricted Subsidiaries determined by the management of the Borrowers to be no longer useful or necessary in the operation of the business of the Borrowers or any of their Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrowers;
(gn) sales of Equity Interests of any Subsidiary of the BorrowerBorrowers; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower Borrowers or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Borrower Borrowers and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower Borrowers and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(lw) Dispositions of Unrestricted Subsidiaries;
(x) any Restricted Subsidiary of the Borrower Borrowers may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or;
(my) Dispositions permitted by Section 6.04 (other than Section 6.04(p)) and Section 6.06 (other than Section 6.06(h)) and Liens permitted by Section 6.02;
(z) the Disposition of the asset identified to the Administrative Agent prior to the Closing Date;
(aa) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;
(bb) Dispositions in connection with the outsourcing of services in the ordinary course of business; and
(cc) Dispositions (including by capital contribution) of accounts receivable and related assets, or participations therein, in connection with any Receivables Facility permitted by Section 6.01(z). Notwithstanding anything to the contrary contained above in this Section 6.05, (i) no Disposition in excess of $15.0 million shall be permitted by this Section 6.05 (other than Dispositions pursuant to clause (a)(ii), (a)(iii), (b), (c), (i), (k), (l), (r), (s), (t) (u), (v), (w), (x), (aa), (bb) or (cc) (to the extent such Disposition is not required to be for fair market value)) unless such Disposition is for fair market value (as reasonably determined by the Borrowers) and (ii) no Disposition shall be permitted by paragraph (d) or (k) of this Section 6.05 unless such Disposition is for at least 75% cash consideration and (iii) no Disposition in excess of $15.0 million shall be permitted by paragraph (h) of this Section 6.05 unless such Disposition is for at least 75% cash consideration; provided that for purposes of the 75% cash consideration requirement in the foregoing clauses (ii) and (iii), (w) the amount of any Indebtedness or other liabilities of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition, and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $25.0 million (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), in each case, shall be deemed to be cash.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory inventory, goods and equipment in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty or property no longer used or useful in the business, whether now owned or hereafter acquired, in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the any Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments for fair market value in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto thereto, no Event of Default shall have occurred and be continuing, (i) the merger of any Restricted Subsidiary of Holdings Parent (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Restricted Subsidiary of the Lead Borrower) into the Lead Borrower in a transaction in which the Lead Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)entity, (ii) the merger or consolidation of any Restricted Subsidiary with or into any other Restricted Subsidiary; provided that in any such merger a transaction involving (A) the Lead Borrower, (B) Ollie’s or consolidation involving (C) any Subsidiary GuarantorLoan Party, the Lead Borrower (in the case of a transaction involving it), Ollie’s (in the case of a transaction involving it) or a Subsidiary Guarantor Loan Party (in all other cases) shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the a Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrowers;
(c) Dispositions among the Specified Store Closing SalesBorrowers and their Restricted Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a person that is not a Loan Party shall be for fair market value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrowers), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by any Borrower or any Restricted Subsidiary for fair market value not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition in excess of $7.5 million shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Secured Obligations or that are owed to a Borrower or a Subsidiary) of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $12.5 million in each case, shall be deemed to be cash); provided further that (x) immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing and (y) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b);
(h) Dispositions by any Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that (i) any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date (and, to the extent the Borrowers or any Restricted Subsidiary enter into a legally binding commitment within such 270-day period, within 90 days after the end of such 270-day period) such assets were acquired by such Borrower or such Restricted Subsidiary, (ii) on a Pro Forma Basis for such disposition of a line of business and the consummation of such Permitted Business Acquisition, the Lead Borrower is in compliance with the Total Leverage Condition and (iii) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 5.15, and (iii) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of a Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property of the any Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory of the Borrowers and the Restricted Subsidiaries; provided that such inventory does not constitute Eligible Inventory, Eligible In-Transit Inventory or Eligible Letter of Credit Inventory hereunder;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsParent;
(gn) sales of Equity Interests of any Restricted Subsidiary of the BorrowerBorrowers; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower Borrowers or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Borrower Borrowers and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower Borrowers and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)Agent, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger a transaction involving (A) the Borrower or consolidation involving (B) any Subsidiary GuarantorLoan Party, a Subsidiary Guarantor Loan Party shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, 6.04 or (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrower;
(c) Dispositions among the Specified Store Closing SalesBorrower and its Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a person that is not a Loan Party shall be for book value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrower), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) and not as part of an accounts receivables financing transaction transaction;
(g) Dispositions by the Borrower or any Restricted Subsidiary not otherwise permitted by this Section 6.05; provided that (i) the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of the Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $25.0 million in each case, shall be deemed to be cash) and (ii) the Net Proceeds thereof are applied in accordance with Section 2.11(b); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing;
(h) Dispositions by the Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, on a Pro Forma Basis for such disposition of a line of business or manufacturing facility and the consummation of such Permitted Business Acquisition, the Borrower and the Restricted Subsidiaries are in compliance with the Total Leverage Ratio;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in connection the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 6.04, and (iii) if the collectionBorrower is a party thereto, settlement the Borrower shall be the continuing or compromise thereof surviving person or the continuing or surviving person shall assume the obligations of the Borrower in a bankruptcy or similar proceedingmanner reasonably acceptable to the Administrative Agent;
(ej) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory or other property of the Borrower and the Restricted Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrower;
(gn) sales of Equity Interests of any Subsidiary of the Borrower; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the any Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Subsidiary of the Lead Borrower) into the Lead Borrower in a transaction in which the Lead Borrower is the surviving or resulting entity or the surviving or resulting Person person expressly assumes the obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)Agent, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger a transaction involving (A) the Borrowers or consolidation involving (B) any Subsidiary GuarantorLoan Party, a Subsidiary Guarantor Loan Party shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, 6.04 or (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the a Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrowers;
(c) Dispositions among the Specified Store Closing SalesBorrowers and their Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a person that is not a Loan Party shall be for book value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrowers), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by any Borrower or any Restricted Subsidiary of Term Priority Collateral not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $25.0 million in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing;
(h) Dispositions by any Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by such Borrower or such Subsidiary; and provided further that, the Payment Conditions are satisfied at the time of such Disposition;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 6.04, and (iii) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of a Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the any Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory or other property of the Borrowers and the Restricted Subsidiaries determined by the management of the Borrowers to be no longer useful or necessary in the operation of the business of the Borrowers or any of their Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrowers;
(gn) sales of Equity Interests of any Subsidiary of the BorrowerBorrowers; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower Borrowers or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Borrower Borrowers and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower Borrowers and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into The Company will not, and will not permit its Subsidiaries to, be a party to any merger or consolidate with any other Personconsolidation, or permit any other Person to merge into sell, transfer, lease or consolidate with it, or Dispose otherwise dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired)property, or Dispose including a disposition of any Equity Interests property as part of any Subsidiary of the Borrower (including pursuant to any Division)a sale and leaseback transaction; provided, except however, that this Section 6.05 8.2 shall not prohibit:
apply (in the case of clauses (h) and (i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Subsidiary), (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions of cash and Permitted Investments, in each case in the ordinary course of business and in accordance with the Approved Budget;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuingcontinuing both immediately before and after the transactions described therein) to or prevent the Company or any of its Subsidiaries from:
(a) selling Inventory in the ordinary course of its business;
(b) selling, (i) transferring or otherwise disposing of worn-out, obsolete or surplus property or property no longer useful or necessary to the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary operation of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations business of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger Company or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orits Subsidiaries;
(c) the Specified Store Closing Salesentering into Permitted Licensing Agreements;
(d) Dispositions selling, transferring or otherwise disposing of receivables in any property from the ordinary course Company or any Subsidiary of business the Company (iother than the Company) not as part to the Company or any Wholly-owned Subsidiary of an accounts receivables financing transaction or the Company (iiother than the Company) in connection with the collection, settlement or compromise thereof in that is a bankruptcy or similar proceedingDomestic Subsidiary;
(e) licensing and cross-licensing arrangements involving any technology selling, transferring or other Intellectual Property otherwise disposing of the Borrower or any Subsidiary Guarantor in the ordinary course of businessExcluded Assets;
(f) the issuance selling, transferring or otherwise disposing of Qualified Capital Stock by the Borrower to Intermediate Holdings;property not otherwise permitted hereunder having an aggregate fair market value of $2,000,000; or
(g) sales of Equity Interests of any Subsidiary of consummating the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary GuarantorReverse Stock Split;
(h) Dispositions following the consummation of the Closing Date Transactions, taking such action as may be necessary under Applicable Law to merge or consolidate some or all of the Domestic Subsidiaries into the Company (each a “Merged Subsidiary”), in the unfettered exercise of the Company’s and the applicable Subsidiary’s business judgment, whereupon (a) all property of any such Merged Subsidiary (the “Liquidation Distribution”) shall become the property of Borrower, and (b) the Liquidation Distribution shall become part of the Collateral subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt the Lien of the Net Proceeds therefor;Collateral Agent; and
(i) Dispositions of property the transaction described in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Subsidiaries;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(k) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business8.5(c).
Appears in 1 contract
Samples: Senior Secured Note and Warrant Purchase Agreement (Orthovita Inc)
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary of the Borrower (including pursuant to any Division), except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty (other than Inventory), whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person (which Person shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders) (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04Person, (iii) the liquidation or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous the assets of such liquidating or dissolving Subsidiary are transferred to the LendersBorrower or a Subsidiary Guarantor, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) or);
(c) Dispositions among the Specified Store Closing SalesBorrower and the Subsidiary Guarantors (upon voluntary liquidation or otherwise);
(d) [reserved];
(e) to the extent constituting a Disposition, Liens permitted by Section 6.02, Investments permitted by Section 6.04 (other than Section 6.04(p)), and Restricted Payments permitted by Section 6.06 (other than Section 6.06(f));
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by the Borrower or any Subsidiary of assets not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection and substantially contemporaneously with such Disposition, and (y) any securities received by such Subsidiary from such transferee that are converted by such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) substantially contemporaneously following the closing of the applicable Disposition, in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that, Dispositions made pursuant to this Section 6.05(g) shall not exceed $2.5 million in aggregate in any fiscal year;
(h) Dispositions by the Borrower or any Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, Dispositions made pursuant to this Section 6.05(h) shall not exceed $2.5 million in aggregate in any fiscal year and provided further that, no Dispositions may be made pursuant to this Section 6.05(h) until the date that is two (2) years after the Fifth Amendment Effective Date;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04; provided that (i) if the continuing or surviving Person is a Loan Party or a Subsidiary of a Loan Party, such Loan Party or Subsidiary shall have complied with its obligations under Section 5.09 (if any), and (ii) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the continuing or surviving Person (which Person shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders);
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the Borrower or any Subsidiary Guarantor in the ordinary course of businessbusiness and not interfering in any material respect with the ordinary conduct of or materially detracting from the value of the business of the Borrower and its Subsidiaries;
(fk) Dispositions of Inventory or other property of the Borrower or any Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries, provided that, Dispositions made pursuant to this Section 6.05(k) shall not exceed $5.0 million in aggregate in any fiscal year;
(l) [reserved];
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrower;
(gn) sales of Equity Interests of any Subsidiary of the Borrower; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Guarantor, the purchaser shall be the Borrower or another Subsidiary GuarantorGuarantor or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property, provided that, Dispositions made pursuant to this Section 6.05(o) shall not exceed $5.0 million in aggregate in any fiscal year;
(p) leases, subleases, licenses or sublicenses of property (other than intellectual property) in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds net proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of managementextent required by, or consultants of made pursuant to, buy/sell arrangements between the Borrower joint venture parties set forth in, joint venture arrangements and the Subsidiariessimilar binding arrangements;
(kt) [reserved];
(u) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(lw) [reserved];
(x) any Subsidiary surrender or waiver of contractual rights or the Borrower may consummate a mergersettlement, dissolution, liquidation release or consolidation, the purpose surrender of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services contractual rights or other litigation claims in the ordinary course of business;
(y) [reserved];
(z) any change in form of entity of any Subsidiary if the Borrower determines in good faith that such change in form is in the best interests of the Borrower; provided that the Borrower and such Subsidiary shall substantially concurrently with such change in form take all actions necessary, if any, to preserve the perfection of the Administrative Agent’s Lien on the Equity Interests in and Property of such Subsidiary (other than any Excluded Assets);
(aa) as long as no Event of Default then exists or would arise therefrom, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis and not to an Affiliate; provided that such store closures and related Inventory dispositions shall not exceed, in any fiscal year 20.0% of the number of the Loan Parties’ stores as of the beginning of such fiscal year (net of store relocations wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings shall be paid to a Deposit Account that is subject to a Control Agreement; and
(bb) the Plan Sale Leaseback in accordance with the Plan of Reorganization. Notwithstanding anything to the contrary contained above in this Section 6.05, (i) no Disposition or series of related Dispositions in excess of $1.0 million shall be permitted by this Section 6.05 (other than Dispositions pursuant to paragraphs (a)(ii), (b), (c), (i), (k), (r), (s), (u), or (v)) unless such Disposition is for fair market value (as reasonably determined by the Borrower), (ii) no Disposition shall be permitted by Section 6.05(aa) or Section 6.05(kk without receiving at least 75% cash consideration for each such Disposition, (iii) no Disposition or series of related Dispositions in excess of $1.5 million shall be permitted by Section 6.05(h) unless such Disposition is for at least 75% cash consideration; provided that for purposes of the 75% cash consideration requirement in the foregoing clause (iii), (w) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection and substantially contemporaneously with such Disposition and (y) any securities received by such Subsidiary from such transferee that are converted by such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) substantially contemporaneously with the closing of the applicable Disposition, in each case, shall be deemed to be cash, (iv) [reserved], and (v) in no event shall (x) any Loan Party Dispose of any Material Intellectual Property to any Person that is not a Loan Party other than to the extent constituting non-exclusive outbound licenses of patents, copyrights, trademarks and other intellectual property rights granted by a Loan Party in the ordinary course of business and not interfering in any respect with the ordinary conduct of or materially detracting from the value of the Term Loan Priority Collateral or the business of the Borrower and its Subsidiaries or (y) any Subsidiary that is not a Loan Party own or develop any Material Intellectual Property.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or Merge, dissolve, liquidate, amalgamate, consolidate with any other or into another Person, or permit any other Person to merge into or consolidate with it, or Dispose of (whether in one (1) transaction or in a series of related transactions) all or any part substantially all of its assets (whether now owned or hereafter acquired), ) to or Dispose in favor of any Equity Interests Person, except that, so long as no Default or Event of Default exists or would result therefrom:
(a) any Subsidiary of the Borrower Alterra Capital (including pursuant to other than Xxxxxx Bermuda) may merge, amalgamate or consolidate with Alterra Capital or any Division), except that this Section 6.05 shall not prohibit:
Subsidiary of Xxxxxx so long as (i) if either such Subsidiary is a Wholly Owned Subsidiary, the Disposition of inventory and equipment surviving Person shall (or, in the ordinary course case of business by an amalgamation, the Borrower amalgamated entity shall), after giving effect to such merger, amalgamation or any Subsidiaryconsolidation, be Alterra Capital or a Wholly Owned Subsidiary of Xxxxxx, as the case may be; and (ii) if a Borrower is a party thereto, (A) a Borrower is the Disposition surviving entity (or, if an amalgamation, the amalgamated entity shall be liable for such Borrower’s obligations), and (B) the Administrative Agent shall have received such documents, certificates and opinions in connection with such merger, amalgamation or consolidation affirming the effectiveness of surplus, obsolete, used or worn out property, whether now owned or hereafter acquiredthis Agreement and the other Loan Documents and the liability of such Borrower (including, in the ordinary course case of business by an amalgamation, the Borrower or any Subsidiary, (iiiamalgamated entity) for the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions of cash and Permitted Investments, in each case in the ordinary course of business and in accordance with the Approved BudgetObligations as it shall have reasonably requested;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Subsidiary (other than the BorrowerXxxxxx Bermuda) may Dispose of all or change in form substantially all of entity of its assets (upon voluntary liquidation or otherwise) to Alterra Capital or to any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution of Xxxxxx; and any Subsidiary of Alterra Capital (other than a Material Party) may dissolve or change in form is in the best interests Dispose of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) or;its assets; and
(c) the Specified Store Closing Sales;
any Subsidiary of Alterra Capital (dother than Xxxxxx Bermuda) Dispositions may merge, consolidate or amalgamate with any Person who is not a Subsidiary of receivables in the ordinary course of business Xxxxxx provided (i) not as part in the case of a merger, consolidation or amalgamation, a Subsidiary shall be the continuing or surviving Person and, if any Wholly Owned Subsidiary is merging, consolidating or amalgamating with another Person, such Subsidiary (or, in the case of an accounts receivables financing transaction amalgamation, the amalgamated entity), shall continue to be Wholly Owned after such merger, consolidation or amalgamation, and (ii) if a Borrower is involved, the Administrative Agent shall have received such documents, certificates and opinions in connection with such merger, amalgamation or consolidation affirming the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(e) licensing and cross-licensing arrangements involving any technology or other Intellectual Property effectiveness of the Borrower or any Subsidiary Guarantor in the ordinary course of business;
(f) the issuance of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower this Agreement and the Subsidiaries;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(k) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of businessother Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Markel Corp)
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out property, whether now owned or hereafter acquired, in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the any Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Subsidiary of the Lead Borrower) into the Lead Borrower in a transaction in which the Lead Borrower is the surviving or resulting entity or the surviving or resulting Person person expressly assumes the obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)Agent, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger a transaction involving (A) the Borrowers or consolidation involving (B) any Subsidiary GuarantorLoan Party, a Subsidiary Guarantor Loan Party shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, 6.04 or (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the a U.S. Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrowers;
(c) Dispositions among the Specified Store Closing SalesBorrowers and their Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a (x) person that is not a Loan Party or (y) the U.K. Borrower shall be for book value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrowers), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by any Borrower or any Restricted Subsidiary of (i) Revolving Priority Collateral in an aggregate amount after the Amendment No. 1 Effectiveness Date not to exceed $10.0 million and (ii) Term Priority Collateral, in each case, not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $25.0 million in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that prior to or concurrently with any such Disposition of Revolving Priority Collateral, an updated Borrowing Base Certificate (based on the Borrowing Base Certificate most recently provided or required to be provided as of that date by the Lead Borrower) shall have been provided to the Administrative Agent setting forth the adjusted figures thereon on a Pro Forma Basis for such Disposition;
(h) Dispositions by any Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by such Borrower or such Subsidiary; and provided further that, the Payment Conditions are satisfied at the time of such Disposition;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 6.04, and (iii) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of a Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the any Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory or other property of the Borrowers and the Restricted Subsidiaries determined by the management of the Borrowers to be no longer useful or necessary in the operation of the business of the Borrowers or any of their Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrowers;
(gn) sales of Equity Interests of any Subsidiary of the BorrowerBorrowers; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower Borrowers or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Borrower Borrowers and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower Borrowers and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or Merge, dissolve, liquidate, amalgamate, consolidate with any other or into another Person, or permit any other Person to merge into or consolidate with it, or Dispose of (whether in one (1) transaction or in a series of related transactions) all or any part substantially all of its assets (whether now owned or hereafter acquired), ) to or Dispose in favor of any Equity Interests of any Subsidiary of the Borrower (including pursuant to any Division)Person, except that this Section 6.05 shall not prohibitthat, so long as no Default or Event of Default exists or would result therefrom:
(a) any Subsidiary (other than Alterra Bermuda) may merge, amalgamate or consolidate with Alterra Capital or another Subsidiary so long as (i) if either such Subsidiary is a Wholly Owned Subsidiary, the Disposition of inventory and equipment surviving Person shall (or, in the ordinary course case of business by an amalgamation, the Borrower amalgamated entity shall), after giving effect to such merger, amalgamation or any consolidation, be Alterra Capital or a Wholly Owned Subsidiary, as the case may be; and (ii) if a Borrower is a party thereto, (A) a Borrower is the Disposition surviving entity (or, if an amalgamation, the amalgamated entity shall be liable for such Borrower’s obligations), and (B) the Administrative Agent shall have received such documents, certificates and opinions in connection with such merger, amalgamation or consolidation affirming the effectiveness of surplus, obsolete, used or worn out property, whether now owned or hereafter acquiredthis Agreement and the other Loan Documents and the liability of such Borrower (including, in the ordinary course case of business by an amalgamation, the Borrower or any Subsidiary, (iiiamalgamated entity) for the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions of cash and Permitted Investments, in each case in the ordinary course of business and in accordance with the Approved BudgetObligations as it shall have reasonably requested;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Subsidiary (other than the BorrowerAlterra Bermuda) may Dispose of all or change in form substantially all of entity of its assets (upon voluntary liquidation or otherwise) to Alterra Capital or to any other Subsidiary; and any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution (other than a Material Party) may dissolve or change in form is in the best interests Dispose of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orits assets;
(c) the Specified Store Closing Sales;
any Subsidiary (dother than Alterra Bermuda) Dispositions of receivables in the ordinary course of business may merge, consolidate or amalgamate with any Person who is not a Subsidiary provided (i) not as part in the case of a merger, consolidation or amalgamation, a Subsidiary shall be the continuing or surviving Person and, if any Wholly Owned Subsidiary is merging, consolidating or amalgamating with another Person, such Subsidiary (or, in the case of an accounts receivables financing transaction amalgamation, the amalgamated entity), shall continue to be Wholly Owned after such merger, consolidation or amalgamation, and (ii) if a Borrower is involved, the Administrative Agent shall have received such documents, certificates and opinions in connection with such merger, amalgamation or consolidation affirming the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(e) licensing and cross-licensing arrangements involving any technology or other Intellectual Property effectiveness of the Borrower or any Subsidiary Guarantor in the ordinary course of business;
(f) the issuance of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower this Agreement and the Subsidiaries;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(k) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of businessother Loan Documents.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge (a) Wind up, liquidate, dissolve, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it, or Dispose sell, transfer, lease or otherwise dispose of (in one (1) transaction or in a series of related transactions) all or any part of its substantially all the assets (whether now owned or hereafter acquired), ) of the Borrowers or Dispose of any less than all the Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Lead Borrower, except that this Section 6.05 shall not prohibitthat:
(i) (A) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets or all of the Disposition Equity Interests of inventory any Restricted Subsidiary (upon voluntary winding up, liquidation, dissolution or otherwise) to the Lead Borrower or to any other Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Lead Borrower or a Subsidiary Guarantor and equipment (ii) to the extent constituting an Investment, such Investment must be an Investment in the ordinary course or Indebtedness of business by a Restricted Subsidiary which is not a Loan Party permitted to be incurred in accordance with Sections 6.01 and 6.04, respectively, (B) the Borrower may sell, transfer or otherwise dispose of all or substantially all of its assets or all of the Equity Interests of any Restricted Subsidiary to any Subsidiary Guarantors, and (C) any Foreign Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets or the Equity Interests of any Restricted Subsidiary (upon voluntary winding up, liquidation, dissolution or otherwise) to the Lead Borrower, any Subsidiary Guarantor or any other Foreign Subsidiary;
(ii) (I) any Restricted Subsidiary may merge, amalgamate or consolidate with or wind up, liquidate or dissolve into (i) the Lead Borrower; provided that the Lead Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Lead Borrower pursuant to documents reasonably acceptable to the Administrative Agent or (ii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Guarantor or any Borrower is merging with another Restricted Subsidiary that is not a Subsidiary Guarantor (A) the Subsidiary Guarantor shall be the continuing or surviving Person, (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party permitted to be incurred in accordance with Sections 6.01 and 6.04, respectively and (C) to the extent constituting a Disposition, such Disposition must be permitted hereunder or (II) any Foreign Subsidiary may merge, amalgamate or consolidate with or wind up, liquidate or dissolve into (i) any other Foreign Subsidiary, (ii) the Lead Borrower; provided that the Lead Borrower shall be the continuing entity or (iii) any one or more other Restricted Subsidiaries; provided that the Restricted Subsidiary shall be the continuing or surviving Person;
(iii) any Subsidiary of the Lead Borrower may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect; and
(iv) any merger, consolidation or amalgamation in connection with an Investment permitted under Section 6.04(f).
(b) Make any Disposition not otherwise permitted under paragraph (a) above, except for:
(i) Dispositions of surplusinventory, obsoletedamaged, used obsolete or worn out propertyassets and scrap, whether now owned or hereafter acquired, in each case disposed of in the ordinary course of business by business;
(ii) Dispositions, transfers and other distributions of equipment (A) in a transaction where such equipment is exchanged for credit against the Borrower purchase price of similar replacement equipment or any Subsidiary, (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement equipment;
(iii) the leasing or subleasing of real property (A) Investments permitted by Section 6.04 and (B) Restricted Payments permitted by Section 6.06 (in the ordinary course of business each case other than by the Borrower reference to this Section 6.05 (or any Subsidiary or clause under this Section 6.05));
(iv) Dispositions of cash and Permitted InvestmentsCash Equivalents;
(v) sales, Dispositions or contributions of property (A) between Loan Parties (other than Holdings), (B) between Restricted Subsidiaries (other than Loan Parties), (C) by Restricted Subsidiaries that are not Loan Parties to the Loan Parties (other than Holdings) or (D) by Loan Parties to any Restricted Subsidiary that is not a Loan Party; provided that, in the case of clause (D), (1) the portion (if any) of any such Disposition made for less than fair market value and any non-cash consideration received in exchange for any such Disposition, shall in each case constitute an Investment in such Restricted Subsidiary and (2) the value of the property Disposed must be an amount that, if treated as an Investment, would be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04;
(vi) Dispositions in the ordinary course of business consisting of abandonment, assignment or transfer of all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights that, in accordance with the Approved Budgetgood faith determination of the Lead Borrower, are uneconomical, negligible, obsolete or otherwise not material in the conduct of its business;
(bvii) if Dispositions of property formerly leased by the Lead Borrower or its Restricted Subsidiaries and acquired by the Lead Borrower and sold as an alternative to terminating the lease on such property;
(viii) Dispositions of current assets or receivables owned by any Foreign Subsidiary, including in connection with factoring transactions or receivables financings, in the ordinary course of business;
(ix) the transfer or Disposition of property pursuant to sale and leaseback transactions; provided that (A) at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assetscontinuing or would result therefrom, (B) Intermediate Holdings or the aggregate fair market value of all property disposed of in reliance on this clause shall not exceed $5,000,000 since the Closing Date and (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation is for consideration at least 75 % of which is cash or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orCash Equivalents;
(cI) Casualty Events and (II) the Specified Store Closing Salestransfer of property that is the subject of a Casualty Event upon receipt of insurance or other proceeds arising from such Casualty Event;
(dxi) Dispositions the Disposition of receivables investments in joint ventures to the ordinary course of business (i) not as part of an accounts receivables financing transaction extent required by, or (ii) made pursuant to, any buy/sell arrangement or any similar binding arrangement between joint venture parties, in connection with each case, that is in effect on the collection, settlement or compromise thereof in a bankruptcy or similar proceedingClosing Date;
(exii) licensing and cross-licensing arrangements involving any technology licenses or other Intellectual Property sublicenses of the Borrower or any Subsidiary Guarantor intellectual property in the ordinary course of business;
(fxiii) the issuance leases of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of real property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Subsidiariesbusiness;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(kxiv) the expiration Borrowers and any of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower their respective Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services purchase and sell inventory in the ordinary course of business;
(xv) any Disposition or series of related Dispositions having a value not to exceed $3,000,000 in any period of twelve consecutive months most recently ended;
(xvi) any Disposition as to which (A) at least 75 % of the consideration is cash or consists of Cash Equivalents, (B) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of, (C) at the time of such transaction both before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (D) the Lead Borrower shall have delivered a certificate of a Financial Officer, certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form and substance satisfactory to the Administrative Agent; provided that the amount of:
(1) any liabilities (as shown on the Lead Borrower’s or a Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Lead Borrower or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets or that are otherwise cancelled or terminated in connection with the transaction with such transferee,
(2) any notes or other obligations or other securities or assets received by the Lead Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received), and
(3) any Designated Non-cash Consideration received by the Lead Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-cash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed $3,000,000 at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be Cash Equivalents for the purposes of Section 6.05(b)(xvi)(A); and
(xvii) Dispositions between or among Foreign Subsidiaries. To the extent that any Collateral is sold or otherwise Disposed of as permitted by this Section 6.05(b) (other than to Holdings or any Restricted Subsidiary thereof), such Collateral shall be sold free and clear of the Liens created by the Security Documents and such Liens shall attach to the proceeds thereof, and the Administrative Agent and the Collateral Agent are hereby authorized by the Lenders to take any actions deemed appropriate in order to effect and/or evidence the foregoing.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary of the Borrower (including pursuant to any Division), except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty (other than Inventory), whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person (which Person shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04Person, (iii) the liquidation or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous the assets of such liquidating or dissolving Subsidiary are transferred to the LendersBorrower or a Subsidiary Guarantor, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) or);
(c) Dispositions among the Specified Store Closing SalesBorrower and the Subsidiary Guarantors (upon voluntary liquidation or otherwise);
(d) [reserved];
(e) to the extent constituting a Disposition, Liens permitted by Section 6.02, Investments permitted by Section 6.04 (other than Section 6.04(p)), and Restricted Payments permitted by Section 6.06 (other than Section 6.06(f));
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by the Borrower or any Subsidiary of assets not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection and substantially contemporaneously with such Disposition, and (y) any securities received by such Subsidiary from such transferee that are converted by such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) substantially contemporaneously following the closing of the applicable Disposition, in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that prior to or concurrently with any such Disposition involving Borrowing Base Collateral, an updated Borrowing Base Certificate (based on the Borrowing Base Certificate most recently provided or required to be provided as of that date by the Borrower) shall have been provided to the Administrative Agent setting forth the adjusted figures thereon on a pro forma basis for such Disposition and no breach of Section 6.10 shall exist after giving pro forma effect thereto;
(h) Dispositions by the Borrower or any Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, the Payment Conditions are satisfied at the time of such Disposition; and provided further that prior to or concurrently with any such Disposition involving Borrowing Base Collateral, an updated Borrowing Base Certificate (based on the Borrowing Base Certificate most recently provided or required to be provided as of that date by the Borrower) shall have been provided to the Administrative Agent setting forth the adjusted figures thereon on a pro forma basis for such Disposition and no breach of Section 6.10 shall exist after giving pro forma effect thereto;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04; provided that (i) if the continuing or surviving Person is a Loan Party or a Subsidiary of a Loan Party, such Loan Party or Subsidiary shall have complied with its obligations under Section 5.09 (if any), and (ii) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the continuing or surviving Person (which Person shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the Borrower or any Subsidiary Guarantor in the ordinary course of business;
(f) the issuance of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of property in the ordinary course of business consisting and not interfering in any material respect with the ordinary conduct of or materially detracting from the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct value of the business of the Borrower and the its Subsidiaries;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(k) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Subsidiary of the Borrower (including pursuant to any Division), except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory and equipment in the ordinary course of business by the Borrower or any Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty (other than Inventory), whether now owned or hereafter acquired, in the ordinary course of business by the Borrower or any Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person (which Person shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders) (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04Person, (iii) the liquidation or dissolution of any Subsidiary (other than the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous the assets of such liquidating or dissolving Subsidiary are transferred to the LendersBorrower or a Subsidiary Guarantor, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) or);
(c) Dispositions among the Specified Store Closing SalesBorrower and the Subsidiary Guarantors (upon voluntary liquidation or otherwise);
(d) [reserved];
(e) to the extent constituting a Disposition, Liens permitted by Section 6.02, Investments permitted by Section 6.04 (other than Section 6.04(p)), and Restricted Payments permitted by Section 6.06 (other than Section 6.06(ef));
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by the Borrower or any Subsidiary of assets not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection and substantially contemporaneously with such Disposition, and (y) any securities received by such Subsidiary from such transferee that are converted by such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) substantially contemporaneously following the closing of the applicable Disposition, in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing; provided further that, Dispositions made pursuant to this Section 6.05(g) shall not exceed $2.5 million in aggregate in any fiscal year;
(h) Dispositions by the Borrower or any Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, Dispositions made pursuant to this Section 6.05(h) shall not exceed $2.5 million in aggregate in any fiscal year;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04; provided that (i) if the continuing or surviving Person is a Loan Party or a Subsidiary of a Loan Party, such Loan Party or Subsidiary shall have complied with its obligations under Section 5.09 (if any), and (ii) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the continuing or surviving Person (which Person shall be organized or existing under the laws of the United States, any state thereof or the District of Columbia) shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders);
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property intellectual property of the Borrower or any Subsidiary Guarantor in the ordinary course of businessbusiness and not interfering in any material respect with the ordinary conduct of or materially detracting from the value of the business of the Borrower and its Subsidiaries;
(fk) Dispositions of Inventory or other property of the Borrower and the Subsidiariesor any Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries, provided that, Dispositions made pursuant to this Section 6.05(k) shall not exceed $5.0 million in aggregate in any fiscal year;
(l) [reserved];
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsBorrower;
(gn) sales of Equity Interests of any Subsidiary of the Borrower; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Guarantor, the purchaser shall be the Borrower or another Subsidiary GuarantorGuarantor or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property, provided that, Dispositions made pursuant to this Section 6.05(o) shall not exceed $5.0 million in aggregate in any fiscal year;
(p) leases, subleases, licenses or sublicenses of property (other than intellectual property) in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds net proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property intellectual property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and the Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of managementextent required by, or consultants of made pursuant to, buy/sell arrangements between the Borrower joint venture parties set forth in, joint venture arrangements and the Subsidiariessimilar binding arrangements;
(kt) [reserved];
(u) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(lw) [reserved];
(x) any Subsidiary surrender or waiver of contractual rights or the Borrower may consummate a mergersettlement, dissolution, liquidation release or consolidation, the purpose surrender of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services contractual rights or other litigation claims in the ordinary course of business;
(y) [reserved];
(z) any change in form of entity of any Subsidiary if the Borrower determines in good faith that such change in form is in the best interests of the Borrower; provided that the Borrower and such Subsidiary shall substantially concurrently with such change in form take all actions necessary, if any, to preserve the perfection of the Administrative Agent’s Lien on the Equity Interests in and Property of such Subsidiary (other than any Excluded Assets);
(aa) as long as no Event of Default then exists or would arise therefrom, bulk sales or other dispositions of the Loan Parties’ Inventory outside of the ordinary course of business in connection with store closings that are conducted on an arm’s-length basis and not to an Affiliate; provided that such store closures and related Inventory dispositions shall not exceed, in any fiscal year 20.0% of the number of the Loan Parties’ stores as of the beginning of such fiscal year (net of store relocations wherein a binding lease has been entered into for a new store opening prior to the related store closure date); provided, further, that all sales of Inventory in connection with store closings shall be paid to a Deposit Account that is subject to a Control Agreement; and
(bb) the Plan Sale Leaseback in accordance with the Plan of Reorganization. Notwithstanding anything to the contrary contained above in this Section 6.05, (i) no Disposition or series of related Dispositions in excess of $1.0 million shall be permitted by this Section 6.05 (other than Dispositions pursuant to paragraphs (a)(ii), (b), (c), (i), (k), (r), (s), (u), or (v)) unless such Disposition is for fair market value (as reasonably determined by the Borrower), (ii) no Disposition shall be permitted by paragraphs (kSection 6.05(aa) or (aa) of this Section 6.05(kk without receiving at least 75% cash consideration for each such Disposition, (iii) no Disposition or series of related Dispositions in excess of $1.5 million shall be permitted by paragraph (h) of this Section 6.05(h) unless such Disposition is for at least 75% cash consideration; provided that for purposes of the 75% cash consideration requirement in the foregoing clause (iii), (w) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection and substantially contemporaneously with such Disposition and (y) any securities received by such Subsidiary from such transferee that are converted by such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) substantially contemporaneously with the closing of the applicable Disposition, in each case, shall be deemed to be cash, (iv) [reserved], and (v) in no event shall (x) any Loan Party Dispose of any Material Intellectual Property to any Person that is not a Loan Party other than to the extent constituting non-exclusive outbound licenses of patents, copyrights, trademarks and other intellectual property rights granted by a Loan Party in the ordinary course of business and not interfering in any respect with the ordinary conduct of or materially detracting from the value of the Term Loan Priority Collateral or the business of the Borrower and its Subsidiaries or (y) any Subsidiary that is not a Loan Party own or develop any Material Intellectual Property.
Appears in 1 contract
Mergers, Consolidations and Dispositions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or Dispose of (in one (1) transaction or in a series of related transactions) all or any part of its assets (whether now owned or hereafter acquired), or Dispose of any Equity Interests of any Restricted Subsidiary of the Borrower (including pursuant to any Division)Borrower, except that this Section 6.05 shall not prohibit:
(i) the Disposition of inventory inventory, goods and equipment in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (ii) the Disposition of surplus, obsolete, used or worn out propertyproperty or property no longer used or useful in the business, whether now owned or hereafter acquired, in the ordinary course of business by the any Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the any Borrower or any Restricted Subsidiary or (iv) Dispositions the Disposition of cash and Permitted Investments, in each case Investments for fair market value in the ordinary course of business and in accordance with the Approved Budgetbusiness;
(b) if at the time thereof and immediately after giving effect thereto thereto, no Event of Default shall have occurred and be continuing, (i) the merger of any Restricted Subsidiary of Holdings Parent (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, assets or (B) Intermediate Holdings or (C) a Restricted Subsidiary of the Lead Borrower) into the Lead Borrower in a transaction in which the Lead Borrower is the surviving or resulting entity or the surviving or resulting Person person expressly assumes the obligations of the Lead Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division)Agent, (ii) the merger or consolidation of any Restricted Subsidiary with or into any other Restricted Subsidiary; provided that in any such merger a transaction involving (A) the Borrowers or consolidation involving (B) any Subsidiary GuarantorLoan Party, a Borrower (in the case of a transaction involving it) or a Subsidiary Guarantor Loan Party (in all other cases) shall be the surviving or resulting Person person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the a Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orBorrowers;
(c) Dispositions among the Specified Store Closing SalesBorrowers and their Restricted Subsidiaries (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a person that is not a Loan Party shall be for fair market value (as reasonably determined by such person) or such transaction shall, to the extent sold for less than fair market value (as reasonably estimated by the Borrowers), be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and Restricted Payments permitted by Section 6.06;
(f) Dispositions of receivables in the ordinary course of business (i) not as part of an accounts receivables financing transaction or (ii) in connection with the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(eg) Dispositions by any Borrower or any Restricted Subsidiary for fair market value not otherwise permitted by this Section 6.05; provided that the consideration for any Disposition in excess of $7.5 million shall be at least 75% cash consideration (provided that for purposes of the 75% cash consideration requirement (w) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to a Borrower or a Subsidiary) of any Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (x) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (y) any securities received by such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) within 180 days following the closing of the applicable Disposition and (z) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (z) that is at that time outstanding, not in excess of $12.5 million in each case, shall be deemed to be cash); provided further that immediately prior to and after giving effect to such Disposition, no Event of Default shall have occurred or be continuing;
(h) Dispositions by any Borrower or any Restricted Subsidiary of assets that were acquired in connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that (i) any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within two hundred seventy (270) days of the date (and, to the extent the Borrowers or any Restricted Subsidiary enter into a legally binding commitment within such 270-day period, within 90 days after the end of such 270-day period) such assets were acquired by such Borrower or such Restricted Subsidiary and (ii) on a Pro Forma Basis for such disposition of a line of business and the consummation of such Permitted Business Acquisition, the Total Leverage Ratio does not exceed 4.50:1.00 as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.04;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or Unrestricted Subsidiary Designation); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09 (if any), (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or an Unrestricted Subsidiary Designation, such transaction must be consummated in compliance with Section 5.14, and (iii) if a Borrower is a party thereto, such Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of a Borrower in a manner reasonably acceptable to the Administrative Agent;
(j) licensing and cross-licensing arrangements involving any technology or other Intellectual Property of the any Borrower or any Restricted Subsidiary Guarantor in the ordinary course of business;
(fk) Dispositions of inventory of the Borrowers and the Restricted Subsidiaries; provided that such inventory does not constitute Eligible Inventory, Eligible In-Transit Inventory or Eligible Letter of Credit Inventory hereunder;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower to Intermediate HoldingsParent;
(gn) sales of Equity Interests of any Restricted Subsidiary of the BorrowerBorrowers; provided that that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party which is a Wholly Owned Subsidiary, the purchaser shall be the Borrower Borrowers or another Subsidiary GuarantorLoan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(p));
(ho) Dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrowers and the Restricted Subsidiaries;
(q) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(ir) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the BorrowerBorrowers, are not material to the conduct of the business of the Borrower Borrowers and the Restricted Subsidiaries;
(js) Dispositions of Investments in Joint Ventures to the Real Property extent required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) Dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower Borrowers and the Restricted Subsidiaries;
(ku) terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Mergers, Consolidations and Dispositions. Merge into or Merge, dissolve, liquidate, amalgamate, consolidate with any other or into another Person, or permit any other Person to merge into or consolidate with it, or Dispose of (whether in one (1) transaction or in a series of related transactions) all or any part substantially all of its assets (whether now owned or hereafter acquired), ) to or Dispose in favor of any Equity Interests of any Subsidiary of the Borrower (including pursuant to any Division)Person, except that this Section 6.05 shall not prohibitthat, so long as no Default or Event of Default exists or would result therefrom:
(a) any Subsidiary (other than Alterra Bermuda) may merge, amalgamate or consolidate with Alterra Capital or another Subsidiary so long as (i) if either such Subsidiary is a Wholly Owned Subsidiary, the Disposition of inventory and equipment surviving Person shall (or, in the ordinary course case of business by an amalgamation, the Borrower amalgamated entity shall), after giving effect to such merger, amalgamation or any consolidation, be Alterra Capital or a Wholly Owned Subsidiary, as the case may be; and (ii) if a Borrower is a party thereto, (A) a Borrower is the Disposition surviving entity (or, if an amalgamation, the amalgamated entity shall be liable for such Borrower's obligations), and (B) the Administrative Agent shall have received such documents, certificates and opinions in connection with such merger, amalgamation or consolidation affirming the effectiveness of surplus, obsolete, used or worn out property, whether now owned or hereafter acquiredthis Agreement and the other Loan Documents and the liability of such Borrower (including, in the ordinary course case of business by an amalgamation, the Borrower or any Subsidiary, (iiiamalgamated entity) for the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Subsidiary or (iv) Dispositions of cash and Permitted Investments, in each case in the ordinary course of business and in accordance with the Approved BudgetObligations as it shall have reasonably requested;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) newly formed expressly for the purpose of such transaction and which owns no assets, (B) Intermediate Holdings or (C) a Subsidiary of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving or resulting entity or the surviving or resulting Person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division), (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in any such merger or consolidation involving any Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or resulting Person or such transaction shall be an Investment permitted by Section 6.04, (iii) the liquidation or dissolution of any Subsidiary (other than the BorrowerAlterra Bermuda) may Dispose of all or change in form substantially all of entity of its assets (upon voluntary liquidation or otherwise) to Alterra Capital or to any other Subsidiary; and any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution (other than a Material Party) may dissolve or change in form is in the best interests Dispose of the Borrower and is not disadvantageous to the Lenders, or (iv) the merger of Parent and Intermediate Holdings (or the dissolution or consolidation of Intermediate Holdings) orits assets;
(c) the Specified Store Closing Sales;
any Subsidiary (dother than Alterra Bermuda) Dispositions of receivables in the ordinary course of business may merge, consolidate or amalgamate with any Person who is not a Subsidiary provided (i) not as part in the case of a merger, consolidation or amalgamation, a Subsidiary shall be the continuing or surviving Person and, if any Wholly Owned Subsidiary is merging, consolidating or amalgamating with another Person, such Subsidiary (or, in the case of an accounts receivables financing transaction amalgamation, the amalgamated entity), shall continue to be Wholly Owned after such merger, consolidation or amalgamation, and (ii) if a Borrower is involved, the Administrative Agent shall have received such documents, certificates and opinions in connection with such merger, amalgamation or consolidation affirming the collection, settlement or compromise thereof in a bankruptcy or similar proceeding;
(e) licensing and cross-licensing arrangements involving any technology or other Intellectual Property effectiveness of the Borrower or any Subsidiary Guarantor in the ordinary course of business;
(f) the issuance of Qualified Capital Stock by the Borrower to Intermediate Holdings;
(g) sales of Equity Interests of any Subsidiary of the Borrower; provided that the purchaser shall be the Borrower or another Subsidiary Guarantor;
(h) Dispositions of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(i) Dispositions of property in the ordinary course of business consisting of the abandonment of Intellectual Property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower this Agreement and the Subsidiaries;
(j) Dispositions of the Real Property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and the Subsidiaries;
(k) the expiration of any option agreement in respect of real or personal property;
(l) any Subsidiary of the Borrower may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition otherwise permitted under this Section 6.05; or
(m) Dispositions in connection with the outsourcing of services in the ordinary course of businessother Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Markel Corp)
