Common use of Mergers, Consolidations and Dispositions Clause in Contracts

Mergers, Consolidations and Dispositions. The Company shall not, nor shall it permit any of its Restricted Subsidiaries to, be a party to any merger, consolidation or dissolution, or sell, transfer, lease or otherwise dispose of all or any part of the Property of the Company and the Restricted Subsidiaries, taken as a whole, including any Disposition of Property as part of a sale and leaseback transaction, or in any event sell or discount (with or without recourse) any of its notes or accounts receivable; provided, however, that this Section 7.13 shall not apply to nor operate to prevent: (a) the Borrowers or any of the Restricted Subsidiaries from selling their inventory, licensing their intellectual Property or leasing or subleasing excess real Property, in each case in the ordinary course of its business or from selling equipment which is obsolete, worn out, or no longer needed for the operation of the business of the Company and the Restricted Subsidiaries or which is promptly replaced with equipment of at least equal utility; (i) the merger of a Restricted Subsidiary with and into the Company and sales by a Restricted Subsidiary of all or substantially all of its assets to the Company, and (ii) the merger of a Restricted Subsidiary with and into another Restricted Subsidiary and the sale of all or substantially all of the assets of a Restricted Subsidiary to another Restricted Subsidiary; provided in each case that if either of the two Restricted Subsidiaries in question is or becomes a Guarantor, the survivor of the transaction in question remains or becomes a Guarantor and, prior to the Collateral Release Date, all such actions are taken as the Agent requires to preserve its Liens on the Collateral; (c) any Disposition of Property as part of a sale and leaseback transaction so long as (i) such transaction would be permitted had it been structured as a purchase money mortgage or Finance Lease and is treated as such for purposes of this Agreement or (ii) such sale and leaseback transaction is between the Company or any of its Restricted Subsidiaries and a Restricted Subsidiary; (d) the sale or discount (with or without recourse) of any of the Company’s or any Restricted Subsidiary’s notes or accounts receivable so long as (i) such sale by the Company or any Restricted Subsidiary of notes or accounts receivable is to the Company or another Restricted Subsidiary, (ii) such notes or accounts receivable are delinquent and such sale is in the ordinary course of business for purposes of collection only or (iii) the original amount of such notes or accounts receivable sold during any fiscal year of the Company does not exceed an aggregate amount of (A) if such sale or discount is with recourse, the greater of (I) $75,000,000 and (B) 1.0% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter of the Company for which the Company shall have delivered financial statements pursuant to Section 7.5(a) or (b) hereof and (B) if such sale or discount is without recourse, the greater of (A) $375,000,000 and (B) 6.0% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter of the Company for which the Company shall have delivered financial statements pursuant to Section 7.5(a) or (b) hereof; (e) the dissolution or liquidation of any Restricted Subsidiary whose activities are no longer, in the opinion of the Chief Executive Officer or the Board of Directors of the Company, necessary for the operation of the business of the Company and its Restricted Subsidiaries taken as a whole, provided that (i) no Default or Event of Default has occurred and is continuing or will result therefrom and (ii) if the Restricted Subsidiary to be dissolved or liquidated is a Guarantor, all of its assets remaining after the dissolution or liquidation in question are transferred to the Company or another Guarantor and, prior to the Collateral Release Date, all such actions, if any, are taken as the Agent may reasonably require in order to insure that it has a Lien on the assets so transferred of the priority required by Section 4.1 hereof; (f) any assignment or sale of transfer of shares in the capital stock of a Restricted Subsidiary permitted by Section 7.13 hereof; (g) the Disposition to any Person of any shares of capital stock of a Restricted Subsidiary for the purpose of (i) qualifying, and to the extent legally necessary to qualify, such person as a director of such Subsidiary or (ii) solely for the purpose of permitting such Subsidiary to carry on a licensed business; (h) any other Disposition not permitted hereunder, provided, that the value of the Property subject to the Disposition when aggregated with the value of the Property of all other such Dispositions during the period from and including the Closing Date to and including the date of such Disposition, would not exceed the greater of (i) $500,000,000 and (ii) 12.5% of the Consolidated Total Assets as of such date. Prior to the Collateral Release Date, the Agent shall release its Lien on any Property sold pursuant to the foregoing provisions if no Default or Event of Default has occurred and is continuing or would result therefrom; and (i) Dispositions of non-core assets acquired in connection with Permitted Acquisitions or other investments after the Closing Date made within 36 months of such Permitted Acquisition or Investment; provided that such non-core assets, in the aggregate, do not exceed 40% of value of the total assets acquired pursuant to such Permitted Acquisition or Investment. Pursuant to Section 10.12 hereof, the Agent shall release any Guaranty Agreement of a Restricted Subsidiary and Liens on the stock issued by or the assets of such Restricted Subsidiary in each case that is sold in accordance with this Section (including a sale of all the capital stock or other equity interests or assets of such Restricted Subsidiary), and such entity shall no longer constitute a Restricted Subsidiary hereunder.

Mergers, Consolidations and Dispositions. The Company shall not, nor shall it permit any of its Restricted Subsidiaries to, be a party to any merger, consolidation or dissolution, or sell, transfer, lease or otherwise dispose of all or any part of the Property of the Company and the Restricted Subsidiaries, taken as a whole, including any Disposition of Property as part of a sale and leaseback transaction, or in any event sell or discount (with or without recourse) any of its notes or accounts receivable; provided, however, that this Section 7.13 shall not apply to nor operate to prevent: (a) the Borrowers or any of the Restricted Subsidiaries from selling their inventory, licensing their intellectual Property or leasing or subleasing excess real Property, in each case in the ordinary course of its business or from selling equipment which is obsolete, worn out, or no longer needed for the operation of the business of the Company and the Restricted Subsidiaries or which is promptly replaced with equipment of at least equal utility; (i) the merger of a Restricted Subsidiary with and into the Company and sales by a Restricted Subsidiary of all or substantially all of its assets to the Company, and (ii) the merger of a Restricted Subsidiary with and into another Restricted Subsidiary and the sale of all or substantially all of the assets of a Restricted Subsidiary to another Restricted Subsidiary; provided in each case that if either of the two Restricted Subsidiaries in question is or becomes a Guarantor, the survivor of the transaction in question remains or becomes a Guarantor and, prior to the Collateral Release Date, all such actions are taken as the Agent requires to preserve its Liens on the Collateral; (c) any Disposition of Property as part of a sale and leaseback transaction so long as (i) such transaction would be permitted had it been structured as a purchase money mortgage or Finance Lease and is treated as such for purposes of this Agreement or (ii) such sale and leaseback transaction is between the Company or any of its Restricted Subsidiaries and a Restricted Subsidiary; (d) the sale or discount (with or without recourse) of any of the Company’s or any Restricted Subsidiary’s notes or accounts receivable so long as (i) such sale by the Company or any Restricted Subsidiary of notes or accounts receivable is to the Company or another Restricted Subsidiary, (ii) such notes or accounts receivable are delinquent and such sale is in the ordinary course of business for purposes of collection only or (iii) the original amount of such notes or accounts receivable sold during any fiscal year of the Company does not exceed an aggregate amount of (A) $50,000,000 if such sale or discount is with recourse, the greater of (I) $75,000,000 recourse and (B) 1.0% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter of the Company for which the Company shall have delivered financial statements pursuant to Section 7.5(a) or (b) hereof and (B) $250,000,000 if such sale or discount is without recourse, the greater of (A) $375,000,000 and (B) 6.0% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter of the Company for which the Company shall have delivered financial statements pursuant to Section 7.5(a) or (b) hereof; (e) the dissolution or liquidation of any Restricted Subsidiary whose activities are no longer, in the opinion of the Chief Executive Officer or the Board of Directors of the Company, necessary for the operation of the business of the Company and its Restricted Subsidiaries taken as a whole, provided that (i) no Default or Event of Default has occurred and is continuing or will result therefrom and (ii) if the Restricted Subsidiary to be dissolved or liquidated is a Guarantor, all of its assets remaining after the dissolution or liquidation in question are transferred to the Company or another Guarantor and, prior to the Collateral Release Date, all such actions, if any, are taken as the Agent may reasonably require in order to insure that it has a Lien on the assets so transferred of the priority required by Section 4.1 hereof; (f) any assignment or sale of transfer of shares in the capital stock of a Restricted Subsidiary permitted by Section 7.13 hereof; (g) the Disposition to any Person of any shares of capital stock of a Restricted Subsidiary for the purpose of (i) qualifying, and to the extent legally necessary to qualify, such person as a director of such Subsidiary or (ii) solely for the purpose of permitting such Subsidiary to carry on a licensed business; (h) any other Disposition not permitted hereunder, provided, that the value of the Property subject to the Disposition when aggregated with the value of the Property of all other such Dispositions during the period from and including the Closing Date to and including the date of such Disposition, would not exceed the greater of (i) $500,000,000 and (ii) 12.5% of the Consolidated Total Assets as of such date. Prior to the Collateral Release Date, the Agent shall release its Lien on any Property sold pursuant to the foregoing provisions if no Default or Event of Default has occurred and is continuing or would result therefrom; and (i) Dispositions of non-core assets acquired in connection with Permitted Acquisitions or other investments after the Closing Date made within 36 months of such Permitted Acquisition or Investment; provided that such non-core assets, in the aggregate, do not exceed 40% of value of the total assets acquired pursuant to such Permitted Acquisition or Investment. Pursuant to Section 10.12 hereof, the Agent shall release any Guaranty Agreement of a Restricted Subsidiary and Liens on the stock issued by or the assets of such Restricted Subsidiary in each case that is sold in accordance with this Section (including a sale of all the capital stock or other equity interests or assets of such Restricted Subsidiary), and such entity shall no longer constitute a Restricted Subsidiary hereunder.

Mergers, Consolidations and Dispositions. The Company shall not, nor shall it permit any of its Restricted Subsidiaries to, be a party to any merger, consolidation or dissolution, or sell, transfer, lease or otherwise dispose of all or any part of the Property of the Company and the Restricted Subsidiaries, taken as a whole, including any Disposition of Property as part of a sale and leaseback transaction, or in any event sell or discount (with or without recourse) any of its notes or accounts receivable; provided, however, that this Section 7.13 shall not apply to nor operate to prevent: (a) the Borrowers or any of the Restricted Subsidiaries from selling their inventory, licensing their intellectual Property or leasing or subleasing excess real Property, in each case in the ordinary course of its business or from selling equipment which is obsolete, worn out, or no longer needed for the operation of the business of the Company and the Restricted Subsidiaries or which is promptly replaced with equipment of at least equal utility; (i) the merger of a Restricted Subsidiary with and into the Company and sales by a Restricted Subsidiary of all or substantially all of its assets to the Company, and (ii) the merger of a Restricted Subsidiary with and into another Restricted Subsidiary and the sale of all or substantially all of the assets of a Restricted Subsidiary to another Restricted Subsidiary; provided in each case that if either of the two Restricted Subsidiaries in question is or becomes a Guarantor, the survivor of the transaction in question remains or becomes a Guarantor and, prior to the Collateral Release Date, all such actions are taken as the Agent requires to preserve its Liens on the Collateral; (c) any Disposition of Property as part of a sale and leaseback transaction so long as (i) such transaction would be permitted had it been structured as a purchase money mortgage or Finance Capital Lease and is treated as such for purposes of this Agreement or (ii) such sale and leaseback transaction is between the Company or any of its Restricted Subsidiaries and a Restricted Subsidiary; (d) the sale or discount (with or without recourse) of any of the Company’s or any Restricted Subsidiary’s notes or accounts receivable so long as (i) such sale by the Company or any Restricted Subsidiary of notes or accounts receivable is to the Company or another Restricted Subsidiary, (ii) such notes or accounts receivable are delinquent and such sale is in the ordinary course of business for purposes of collection only or (iii) the original amount of such notes or accounts receivable sold during any fiscal year of the Company does not exceed an aggregate amount of (A) if such sale or discount is with recourse, $20,000,000 in the greater of (I) $75,000,000 and (B) 1.0% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter of the Company for which the Company shall have delivered financial statements pursuant to Section 7.5(a) or (b) hereof and (B) if such sale or discount is without recourse, the greater of (A) $375,000,000 and (B) 6.0% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter of the Company for which the Company shall have delivered financial statements pursuant to Section 7.5(a) or (b) hereofaggregate; (e) the dissolution or liquidation of any Restricted Subsidiary whose activities are no longer, in the opinion of the Chief Executive Officer or the Board of Directors of the Company, necessary for the operation of the business of the Company and its Restricted Subsidiaries taken as a whole, provided that (i) no Default or Event of Default has occurred and is continuing or will result therefrom and (ii) if the Restricted Subsidiary to be dissolved or liquidated is a Guarantor, all of its assets remaining after the dissolution or liquidation in question are transferred to the Company or another Guarantor and, prior to the Collateral Release Date, all such actions, if any, are taken as the Agent may reasonably require in order to insure that it has a Lien on the assets so transferred of the priority required by Section 4.1 hereof; (f) any assignment or sale of transfer of shares in the capital stock of a Restricted Subsidiary permitted by Section 7.13 hereof; (g) the Disposition to any Person of any shares of capital stock of a Restricted Subsidiary for the purpose of (i) qualifying, and to the extent legally necessary to qualify, such person as a director of such Subsidiary or (ii) solely for the purpose of permitting such Subsidiary to carry on a licensed business;; and (h) any other Disposition not permitted hereunder, provided, that the value of the Property subject to the Disposition when aggregated with the value of the Property of all other such Dispositions during the period from and including the Closing Date to and including the date of such Disposition, would not exceed the greater of (i) $500,000,000 350,000,000 and (ii) 12.510% of the Consolidated Total Assets as of such date. Prior to the Collateral Release Date, the Agent shall release its Lien on any Property sold pursuant to the foregoing provisions if no Default or Event of Default has occurred and is continuing or would result therefrom; and (i) Dispositions of non-core assets acquired in connection with Permitted Acquisitions or other investments after the Closing Date made within 36 months of such Permitted Acquisition or Investment; provided that such non-core assets, in the aggregate, do not exceed 40% of value of the total assets acquired pursuant to such Permitted Acquisition or Investment. Pursuant to Section 10.12 hereof, the Agent shall release any Guaranty Agreement of a Restricted Subsidiary and Liens on the stock issued by or the assets of such Restricted Subsidiary in each case that is sold in accordance with this Section (including a sale of all the capital stock or other equity interests or assets of such Restricted Subsidiary), and such entity shall no longer constitute a Restricted Subsidiary hereunder.

Mergers, Consolidations and Dispositions. The Company shall not, nor shall it permit any of its Restricted Subsidiaries to, be a party to any merger, consolidation or dissolution, or sell, transfer, lease or otherwise dispose of all or any part of the Property of the Company and the Restricted Subsidiaries, taken as a whole, including any Disposition of Property as part of a sale and leaseback transaction, or in any event sell or discount (with or without recourse) any of its notes or accounts receivable; provided, however, that this Section 7.13 shall not apply to nor operate to prevent: (a) the Borrowers or any of the Restricted Subsidiaries from selling their inventory, licensing their intellectual Property or leasing or subleasing excess real Property, in each case in the ordinary course of its business or from selling equipment which is obsolete, worn out, or no longer -53- needed for the operation of the business of the Company and the Restricted Subsidiaries or which is promptly replaced with equipment of at least equal utility; (i) the merger of a Restricted Subsidiary with and into the Company and sales by a Restricted Subsidiary of all or substantially all of its assets to the Company, and (ii) the merger of a Restricted Subsidiary with and into another Restricted Subsidiary and the sale of all or substantially all of the assets of a Restricted Subsidiary to another Restricted Subsidiary; provided in each case that if either of the two Restricted Subsidiaries in question is or becomes a Guarantor, the survivor of the transaction in question remains or becomes a Guarantor and, prior to the Collateral Release Date, all such actions are taken as the Agent requires to preserve its Liens on the Collateral; (c) any Disposition of Property as part of a sale and leaseback transaction so long as (i) such transaction would be permitted had it been structured as a purchase money mortgage or Finance Lease and is treated as such for purposes of this Agreement or (ii) such sale and leaseback transaction is between the Company or any of its Restricted Subsidiaries and a Restricted Subsidiary; (d) the sale or discount (with or without recourse) of any of the Company’s or any Restricted Subsidiary’s notes or accounts receivable so long as (i) such sale by the Company or any Restricted Subsidiary of notes or accounts receivable is to the Company or another Restricted Subsidiary, (ii) such notes or accounts receivable are delinquent and such sale is in the ordinary course of business for purposes of collection only or (iii) the original amount of such notes or accounts receivable sold during any fiscal year of the Company does not exceed an aggregate amount of (A) $50,000,000 if such sale or discount is with recourse, the greater of (I) $75,000,000 recourse and (B) 1.0% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter of the Company for which the Company shall have delivered financial statements pursuant to Section 7.5(a) or (b) hereof and (B) $250,000,000 if such sale or discount is without recourse, the greater of (A) $375,000,000 and (B) 6.0% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter of the Company for which the Company shall have delivered financial statements pursuant to Section 7.5(a) or (b) hereof; (e) the dissolution or liquidation of any Restricted Subsidiary whose activities are no longer, in the opinion of the Chief Executive Officer or the Board of Directors of the Company, necessary for the operation of the business of the Company and its Restricted Subsidiaries taken as a whole, provided that (i) no Default or Event of Default has occurred and is continuing or will result therefrom and (ii) if the Restricted Subsidiary to be dissolved or liquidated is a Guarantor, all of its assets remaining after the dissolution or liquidation in question are transferred to the Company or another Guarantor and, prior to the Collateral Release Date, all such actions, if any, are taken as the Agent may reasonably require in order to insure that it has a Lien on the assets so transferred of the priority required by Section 4.1 hereof; (f) any assignment or sale of transfer of shares in the capital stock of a Restricted Subsidiary permitted by Section 7.13 hereof; (g) the Disposition to any Person of any shares of capital stock of a Restricted Subsidiary for the purpose of (i) qualifying, and to the extent legally necessary to qualify, such person as a director of such Subsidiary or (ii) solely for the purpose of permitting such Subsidiary to carry on a licensed business; (h) any other Disposition not permitted hereunder, provided, that the value of the Property subject to the Disposition when aggregated with the value of the Property of all other such Dispositions during the period from and including the Closing Date to and including the date of such Disposition, would not exceed the greater of (i) $500,000,000 and (ii) 12.5% of the Consolidated Total Assets as of such date. Prior to the Collateral Release Date, the Agent shall release its Lien on any Property sold pursuant to the foregoing provisions if no Default or Event of Default has occurred and is continuing or would result therefrom; and (i) Dispositions of non-core assets acquired in connection with Permitted Acquisitions or other investments after the Closing Date made within 36 months of such Permitted Acquisition or Investment; provided that such non-core assets, in the aggregate, do not exceed 40% of value of the total assets acquired pursuant to such Permitted Acquisition or Investment. Pursuant to Section 10.12 hereof, the Agent shall release any Guaranty Agreement of a Restricted Subsidiary and Liens on the stock issued by or the assets of such Restricted Subsidiary in each case that is sold in accordance with this Section (including a sale of all the capital stock or other equity interests or assets of such Restricted Subsidiary), and such entity shall no longer constitute a Restricted Subsidiary hereunder.