Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that: (i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, the Company or any Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; (ii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or Canada, (2) if the Company is not the surviving corporation, the due and punctual performance and observation of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and (iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist. (b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to: (i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or (ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met: (1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets; (2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and (3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or (iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition. (c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless: (i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety; (ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company; (iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory; (iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and (v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof. (d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Consolidated Subsidiary to, consolidate with or be a party to a merger with any other PersonPerson or dispose of all or a substantial part of the assets of the Company and its Consolidated Subsidiaries; provided that:
(1) any Consolidated Subsidiary may merge or consolidate with or into, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all a substantial part of its assets to, to the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as (A) (i) in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, and (3B) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement Agreement, to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such holders the Holder or Holders of 51% or more of the principal amount of the Notes at the time outstanding to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect theretothereto and to the incurrence of any Debt assumed or incurred in connection therewith, (x) the aggregate amount of outstanding Consolidated Debt and Priority Debt of the surviving corporation would be permitted by the terms of SECTION 5.8 as of the last day of the fiscal quarter immediately preceding the date of such consolidation or merger, and (y) no Default or Event of Default would exist; and
(iii3) the Company may sell and any Consolidated Subsidiary may, sell, transfer or otherwise dispose of all or substantially all any part of its assets (other than as provided Investments in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value ordinary course of such assets (as determined business including, without limitation, in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existsecuritization transactions.
(b) The Company will notnot permit any Consolidated Subsidiary to issue any Voting Stock of such Consolidated Subsidiary except to satisfy the rights of minority shareholders to receive issuances of stock which are non-dilutive to the Company and/or any Consolidated Subsidiary; provided that the foregoing restrictions do not apply to issuances to the Company or to a Wholly-owned Subsidiary or the issuance of directors' qualifying shares.
(c) The Company will not sell, transfer or otherwise dispose of stock or Debt of any Consolidated Subsidiary (except issuance of directors' qualifying shares and sales, transfers and dispositions of all the stock of a special purpose Consolidated Subsidiary for consideration if (x) substantially all the assets of such Consolidated Subsidiary constitute Investments and (y) the sale, transfer or disposition of all such Investments for substantially the same consideration would be permitted by SECTION 5.11(a)(3)) and will not permit any Restricted Consolidated Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets stock (otherwise than by purchase or redemption of preferred stock) of a Consolidated Subsidiary or Debt of any other Consolidated Subsidiary (except (x) Excluded Assets and (y) assets sold in issuances to the ordinary course Company or to a Wholly-owned Subsidiary or issuance of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)directors' qualifying shares); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) all shares of stock and all Debt of such assets (valued at net book value) do not, together with all other assets of Consolidated Subsidiary held by the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assetsshall be sold simultaneously;
(2) in the opinion of the Company's Board of Directors, the :
(i) such sale is for fair value and of stock or Debt is in the best interests of the Company; and
(ii) the consideration paid for such stock and Debt is deemed adequate and satisfactory.
(3) immediately after the consummation Consolidated Subsidiary being disposed of shall not have any continuing investment in the Company or any Consolidated Subsidiary that is not being disposed of simultaneously; and
(4) such sale or disposition does not involve a substantial part of assets of the transaction Company and after giving effect thereto no Default its Consolidated Subsidiaries. As used in this SECTION 5.11, a sale of assets will be deemed a "substantial part" of the assets of the Company and its Consolidated Subsidiaries if (i) the Book Value of such assets sold in a given fiscal year (except those sold in the ordinary course of business) exceeds 15% of the Consolidated Total Assets of the Company and its Consolidated Subsidiaries determined at the close of the immediately preceding fiscal year, or Event (ii) the operations of Default would existsuch assets sold (except those sold in the ordinary course of business) generated 15% or more of the consolidated operating profit of the Company and its Consolidated Subsidiaries during the immediately preceding fiscal year; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets if a portion of the proceeds of which were such assets equal to the aggregate Book Value thereof immediately prior to such sale was or are is applied within twelve months after 365 days of the date of sale of such assets to either (A) the acquisition of assets Investments useful and intended to be used in the operation of the business of the Company and its Restricted Consolidated Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that the Book Value of the assets so disposed of of, or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionSECTION 2.2.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Samples: Note Agreement (Allied Capital Corp)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2) in any merger or consolidation involving a Restricted Subsidiary one or more Wholly-owned Subsidiaries (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existcorporation;
(ii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1) the corporation which results from such consolidation or merger is the Company or another corporation (the "“surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or Canada, (2) if the Company is not the surviving corporation, the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, and (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and;
(iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value Fair Market Value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, and (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, Fair Market Value and except as provided in Section 10.8(a)(iii10.7(a)(iii) and Section 10.8(c10.7(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers)Wholly-owned Subsidiary; or
(ii) the sale by the Company or any Subsidiary of receivables (whether with or without recourse to the Company or any Subsidiary) pursuant to one or more bona fide securitization transactions effected under terms and conditions customary in transactions of a similar nature, which sales are not accounted for under GAAP as secured loans and are, in the good faith opinion of a Senior Financial Officer of the Company, for fair value and in the best interests of the Company and its Subsidiaries, provided that (A) recourse to the Company or any Subsidiary in connection with any such sale of receivables shall be limited to (x) Securitization Recourse Obligations in an amount not in excess of 5% of the cash consideration received by the Company or any Subsidiary for such receivables and (y) repurchase, substitution or indemnification obligations customarily provided for in asset securitization transactions and arising from breaches of representations or warranties made by the Company or a Subsidiary in connection with such sale, (B) after giving effect to such sale of receivables, the aggregate amount of receivables sold by the Company and its Subsidiaries in securitization transactions and which shall then be outstanding shall not exceed $150,000,000 and (C) at the time of such sale of receivables and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing.
(iii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c10.7(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs most recently ended period of twelve consecutive months (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(iSections 10.7(b)(i) and (ii)), exceed 15% of Consolidated Total AssetsTangible Assets determined as of the end of the immediately preceding fiscal year;
(2) in the opinion of the Company's ’s Board of Directors, the sale is for fair value adequate and satisfactory and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto thereto, no Default or Event of Default would exist; provided, however, that for purposes if an amount equal to the Net Proceeds of any sale, lease or other disposition of assets are applied to (x) a Debt Prepayment Application within 360 days after such sale, lease or other disposition, or (y) a Property Reinvestment Application within 180 days before or 360 days after such sale, lease or other disposition (but in any event, within the foregoing calculationsame fiscal year of such sale, there lease or other disposition), then such sale, lease or other disposition shall not be included in any assets the proceeds computations under Section 10.7(b)(iii) as of which were a date on or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used Net Proceeds are so applied; provided, that in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by opinion of the Board of Directors of the Company) , such sale, lease or other disposition is in exchange for consideration having a Fair Market Value at least equal to that of the property and assets so disposed of or (B) exchanged and is in the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt best interest of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any or such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionSubsidiary.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock of a Subsidiary (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i10.7(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the CompanyCompany or a Wholly-owned Subsidiary), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms and for consideration reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b10.7(b)(iii) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any Subsidiary Stock of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) Subsidiary to any Person other than the Company or a Wholly-owned Subsidiary except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby Subsidiary Stock pursuant to which the Company maintains its same proportionate interest Minority Interests in such Restricted Subsidiary, after giving effect to such issuance, do not exceed 10%.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, to (i) consolidate with or be a party to a merger with any other Personcorporation or (ii) sell, or selldiscount, lease or otherwise dispose (other than in the ordinary course of business, which shall include the sale of participations in the Company's financing transactions) of all or substantially all any substantial part (as defined in paragraph (d) of this 5.13) of the assets of the Company and its assets; provided Restricted Subsidiaries, provided, however, that:
(i1) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any other Wholly-owned Restricted Subsidiary (other than Brokers) or any corporation which, immediately after giving effect to such transaction, will become a Wholly-owned Restricted Subsidiary so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, ;
(2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) the Company may may, subject to the provisions of 2.3, consolidate with, or merge with or into, another corporation or transfer sell, lease or dispose of all or substantially all of its assets to, any other to another corporation if if
(1i) either (x) the Company is the surviving or continuing corporation which results from in such merger or consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or Canada, (2y) if the Company is not the surviving or continuing corporation, the corporation formed by such consolidation or into which the Company is merged or the corporation that acquires or leases, all or substantially all of the assets of the Company (the "New Company") shall be a corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and shall expressly assume, in an instrument executed and delivered to the holders of all the Notes (in form not unsatisfactory to the holder or holders of 33-1/3% or more of the aggregate unpaid principal amount of the Notes at the time outstanding, exclusive of any Notes held by a Restricted Subsidiary or Affiliate), the due and punctual payment of the principal of and premium, if any, and interest on, the Notes and the due observance and performance and observation of all each of the covenants in and other terms of the Notes and this Agreement to be observed or performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, Company; and
(3ii) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'xsuch transactions, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iii3) the Company any Restricted Subsidiary may sell sell, lease or otherwise dispose of all or substantially all any substantial part of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existany other Wholly- owned Restricted Subsidiary.
(b) The Company will not permit any Restricted Subsidiary to issue or sell any shares of stock of any class (including as "stock" for the purposes of this 5.13, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) of such Restricted Subsidiary to any Person other than the Company or a Wholly-owned Restricted Subsidiary if, as a result thereof, the Restricted Subsidiary issuing or selling its stock ceases to be a Restricted Subsidiary.
(c) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of (x) any shares of stock in any Restricted Subsidiary Stock if, as a result thereof, the Restricted Subsidiary whose stock is being sold, transferred or disposed of ceases to be a Restricted Subsidiary, or (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokersy) or any Debt Indebtedness of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i1) simultaneously with such sale, transfer transfer, or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of stock and all Debt Indebtedness of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii2) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition retention of said shares of Restricted Subsidiary Stock such stock and Debt Indebtedness is no longer in the best interest interests of the Company;
(iii3) said shares of Restricted Subsidiary Stock such stock and Debt are Indebtedness is sold, transferred or otherwise disposed of to a Person Person, for a cash consideration and on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv4) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v5) such sale, transfer sale or other disposition shall be treated does not involve a substantial part (as a disposition under hereinafter defined) of the assets of the Company and shall satisfy the requirements of Section 10.8(b) hereofits Restricted Subsidiaries.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock As used in this 5.13, a sale, discount, lease or other Securities exchangeable for disposition of assets shall be deemed to be a "substantial part" of the assets of the Company and its Restricted Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or convertible into such stock) to any Person otherwise disposed of by the Company and its Restricted Subsidiaries (other than in the ordinary course of business) during the fiscal year in which such sale, lease or other disposition occurs, exceeds 10% of consolidated assets of the Company except and its Restricted Subsidiaries, determined as of the end of the immediately preceding fiscal year. The book value of assets sold, leased or otherwise disposed of shall be excluded from the calculation of "substantial part" if (A) (i) to qualify such disposition shall be for an amount not less than the fair market value of such assets as determined in good faith by the board of directors or of the Company, (ii) in connection with an issuance after giving effect to such disposition, no Default or Event of Default shall have occurred and be continuing, and (iii) within 180 days of such stock whereby disposition an amount equal to the net proceeds received from such sale shall be used to (x) acquire property, plant or equipment used or useful in carrying on the business of the Company maintains and its same proportionate interest in such Restricted Subsidiaries, or (y) retire Senior Debt of the Company or any Restricted Subsidiary, (B) such disposition is a sale and leaseback transaction permitted by 5.12, or (C) such disposition is a Receivables Securitization Transaction permitted by 5.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate or merge with or be a party to a merger with into any other Person, or sell, lease assign, lease, convey or otherwise dispose of (or cause or permit any of its Restricted Subsidiaries to sell, assign, lease, convey or otherwise dispose of (however effected, including, without limitation, by merger or consolidation)) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and its assets; provided that:
Restricted Subsidiaries), whether as an entirety or substantially an entirety in one transaction or a series of related transactions, including by way of liquidation or dissolution, to any Person unless, in each such case: (ii)(x) any Subsidiary may merge or consolidate with or intothe Company shall be the continuing Person, or transfer all (y) the Person (if other than the Company) formed by such consolidation or substantially all into which the Company or the Restricted Subsidiary, as the case may be, is merged or to which the Properties and assets of its assets to, the Company or any Restricted Subsidiary Subsidiary, as the case may be, are transferred (other than Brokers) so long as in such Person, the "Surviving Entity")
(1) shall be a corporation organized and existing under the laws of the United States or any merger State thereof or consolidation involving the CompanyDistrict of Columbia and (2) shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Notes and this Indenture (upon which assumption the Company shall be discharged of any and all obligations on the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the CompanyNotes and this Indenture), a Restricted Subsidiary and the obligations under this Indenture shall remain in full force and effect; (other than Brokersii) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger immediately before and immediately after giving effect theretoto such transaction (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default would exist;
shall have occurred and be continuing; and (iiiii) immediately after giving effect to such transaction on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or Canada, (2) Surviving Entity if the Company is not continuing) (A) shall have a Consolidated Net Worth equal to or greater than the surviving corporationConsolidated Net Worth of the Company immediately prior to such transaction and (B) could incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) under Section 4.3; provided, that a Restricted Subsidiary may merge with and into the Company without complying with this clause (iii)(B).
(b) In connection with any consolidation, merger or transfer of assets contemplated by this Section 5.1, the due Company shall deliver, or cause to be delivered, to the Trustee, in form and punctual performance substance reasonably satisfactory to the Trustee, an Officers' Certificate and observation an Opinion of Counsel, each stating that such consolidation, merger or transfer and the supplemental indenture in respect thereto comply with this Section 5.1 and that all conditions precedent herein provided for relating to such transaction or transactions have been complied with.
(c) For purposes of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect theretoforegoing, the rating transfer (by lease, assignment, sale or otherwise, in a single transaction or series of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4transactions) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale Properties or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company one or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted more Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt Capital Stock of which constitutes all or substantially all of the Company then outstanding prior to unsecured Senior Funded Debt Properties and assets of the Company. It is understood and agreed by , shall be deemed to be the Company that any such proceeds paid and applied to the prepayment transfer of all or substantially all of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionCompany.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (MMH Holdings Inc)
Mergers, Consolidations and Sales of Assets. (a) The Company Obligors will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary (other than the Company) may merge or consolidate with or into, or transfer all or substantially all of its assets to, the Company Holdings or any Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Companyan Obligor pursuant to this clause (i), the Company such Obligor shall be the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokersthe Company) (other than a merger or consolidation with the CompanyHoldings), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, provided that any decrease in the percentage of the Voting Stock of such Restricted Subsidiary beneficially owned, directly or indirectly, by Holdings shall be treated as a disposition of such Voting Stock by Holdings subject to the provisions of Section 10.6(b) hereof and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) any Restricted Subsidiary (other than the Company Company) may consolidate sell, lease or merge with or into, or transfer otherwise dispose of all or substantially all of its assets to, in compliance with the provisions of Section 10.6(b);
(iii) either Obligor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) if the Company such Obligor is not the surviving corporation, the due and punctual performance and observation of all of the covenants in this Agreement and the Notes to be performed or observed by the Company such Obligor are expressly assumed in writing by the surviving corporation (pursuant to such agreements and instruments as shall be Lincoln Electric Holdings, Inc. Note Purchase Agreement The Lincoln Electric Company satisfactory in form and substance to the Required Holders of the Notes), and the surviving corporation shall furnish to the holders of the Notes Required Holders an opinion of counsel satisfactory to such holders to the effect that the instrument agreements and instruments of assumption has have been duly authorized, executed and delivered and constitutes constitute the legal, valid and binding contract contracts and agreement agreements of the surviving corporation enforceable in accordance with its their respective terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iiiiv) the Company may Obligors may, collectively, sell or otherwise dispose of all or substantially all of its assets their assets, taken as a whole (other than as provided in this Section 10.8(a10.6(a) and Section 10.8(c10.6(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by a Senior Financial Officer of such Obligor or, to the extent the approval of the Board of Directors is required, the Board of Directors of the Company) such Obligor), at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual performance and observance of all of the covenants in this Agreement and the Notes to be performed or observed by the Company such Obligor are expressly assumed in writing by the acquiring corporation (pursuant to such agreements and instruments as shall be satisfactory in form and substance to the Required Holders of the Notes), and the acquiring corporation shall furnish to the holders of the Notes Required Holders an opinion of counsel satisfactory to such holders to the effect that the instrument agreements and instruments of assumption has have been duly authorized, executed and delivered and constitutes constitute the legal, valid and binding contract contracts and agreement agreements of such acquiring the surviving corporation enforceable in accordance with its their respective terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company Obligors will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market valueassets, and except as provided in Section 10.8(a)(iii) and Section 10.8(c))including, without limitation, any Restricted Subsidiary Stock of, or any Investment in, any Restricted Subsidiary; provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary (other than the Company) to the Company Holdings or a Restricted Subsidiary, provided that any sale, lease, transfer or other disposition of assets from a transferring Restricted Subsidiary (to another Restricted Subsidiary with a larger minority interest than the transferring Restricted Subsidiary shall be treated as a sale, lease, transfer or other than Brokers)disposition of assets by such transferring Restricted Subsidiary, to the extent that the minority interest of such other Restricted Subsidiary exceeds the minority interest of the Lincoln Electric Holdings, Inc. Note Purchase Agreement The Lincoln Electric Company transferring Restricted Subsidiary, subject to the provisions of Section 10.6(b)(v) hereof; or
(ii) the sale of assets in the ordinary course of business for fair market value; or
(including iii) the sale or other disposition of all or substantially all of the assets of the Obligors, taken as a whole, as provided in Section 10.6(a)(iv) hereof; or
(iv) the sale, transfer or other disposition of Restricted Subsidiary Stock disposed (1) to qualify directors, (2) to comply with local laws requiring multiple shareholders, or (3) in connection with a merger or consolidation permitted under Section 10.6(a)(i); or
(v) the sale of assets (including, without limitation, (A) a decrease in the percentage of Voting Stock of a Restricted Subsidiary (other than the Company) beneficially owned, directly or indirectly, by Holdings as a result of a merger or consolidation pursuant to Section 10.8(c10.6(a)(i) hereof, (B) a sale, lease or other disposition of all or substantially all of the assets of a Restricted Subsidiary (other than the Company) pursuant to Section 10.6(a)(ii), (C) any Restricted Subsidiary Stock of, or any Investment in, any Restricted Subsidiary pursuant to Section 10.6(b)(i) and (D) an increase in the minority interest in the stock and surplus of a Restricted Subsidiary as a result of the issuance of stock by such Restricted Subsidiary permitted under Section 10.6(c)) for cash or other property Cash Equivalents to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) the Disposition Value of such assets (valued at net book value) do does not, together with the Disposition Value of all other assets of the Company Holdings and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(iSections 10.6(b)(i) (subject to the proviso therein), 10.6(b)(ii), 10.6(b)(iii), 10.6(b)(iv) and 10.6(b)(vi)), exceed 15% of Consolidated Total Assets;
(2) in a Senior Financial Officer of Holdings, or (to the opinion extent the approval of the Company's Board of DirectorsDirectors is required) the Board of Directors of Holdings (as evidenced by a resolution thereof) shall have determined, that the sale proposed sale, lease, transfer or other disposition is for fair value and is in the best interests of Holdings and its Restricted Subsidiaries;
(3) if, after giving effect to such sale, transfer or other disposition of Restricted Subsidiary Stock of a Restricted Subsidiary, such Restricted Subsidiary shall no longer qualify to be a "Restricted Subsidiary" hereunder, simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary and all Investment in such Restricted Subsidiary at the Companytime owned by Holdings and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety and such Lincoln Electric Holdings, Inc. Note Purchase Agreement The Lincoln Electric Company Restricted Subsidiary shall not have any continuing Investment in Holdings or any other Restricted Subsidiary not being simultaneously disposed of;
(4) any Restricted Subsidiary Stock of and Investment in any Restricted Subsidiary that are sold, transferred or otherwise disposed of shall be sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by a Senior Financial Officer of Holdings or (to the extent the approval of the Board of Directors is required) the Board of Directors of Holdings to be adequate and satisfactory; and
(35) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the net proceeds of which were or are applied either (A) within twelve months after the date of sale of such assets assets, to either (A) the acquisition of assets of a similar character useful and intended to be used in the operation of the business of the Company Holdings and its Restricted Subsidiaries and having a fair market value and a capacity to contribute to Consolidated EBITDA (as determined in good faith by a Senior Financial Officer of Holdings or (to the extent the approval of the Board of Directors is required) the Board of Directors of the Company) Holdings), in each case, at least equal to that of the assets so disposed of or (B) immediately upon receipt, to the prepayment at prepayment, together with any applicable prepayment premium, on a pro rata basis, of the Notes and any other Consolidated Senior Funded Debt of the CompanyDebt, provided that the Company Obligors may prepay any secured Consolidated Senior Funded Debt of the Company then outstanding prior to unsecured Consolidated Senior Funded Debt of the CompanyDebt. It is understood and agreed by the Company Obligors that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iiivi) the sale, lease, transfer sale or other disposition transfer of assets or Subsidiary Stock of Brokers if all assets of the Trade Receivables to a Special Purpose Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i))one or more Qualifying Securitization Transactions, do to the extent that the aggregate amount outstanding under all financing facilities relating to such Qualifying Securitization Transactions shall not exceed 15% $75,000,000 at any time of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositiondetermination.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company Obligors will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company an Obligor (except (i) to qualify directors directors, (ii) stock issued to comply with local laws requiring multiple shareholders, or (iiiii) in connection with an issuance of such stock whereby the Company Holdings maintains its same direct or indirect proportionate interest in such Restricted Subsidiary), unless
(i) such issuance is for cash consideration or Cash Equivalents and after giving effect to such issuance of such stock, such Restricted Subsidiary shall continue to be a "Restricted Subsidiary" hereunder; Lincoln Electric Holdings, Inc. Note Purchase Agreement The Lincoln Electric Company
(ii) a Senior Financial Officer of Holdings, or (to the extent the approval of the Board of Directors is required) the Board of Directors of Holdings (as evidenced by a resolution thereof) shall have determined that the proposed issuance of said stock is for fair value and is in the best interest of Holdings and its Restricted Subsidiaries;
(iii) said stock issued to a Person on terms reasonably deemed by such Senior Financial Officer of Holdings or (to the extent the approval of the Board of Directors is required) the Board of Directors of Holdings to be adequate and satisfactory; and
(iv) such issuance shall be treated as a disposition of assets by Holdings of a portion of such Restricted Subsidiary equal to the increase in the minority interests in the stock and surplus of such Restricted Subsidiary subject to the provisions of Section 10.6(b) hereof.
Appears in 1 contract
Samples: Note Purchase Agreement (Lincoln Electric Holdings Inc)
Mergers, Consolidations and Sales of Assets. (a1) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, ; and
(2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist; and
exist and (iiiB) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith surviving corporation would be permitted by the Board provisions of Directors of the Company(S)(S)5.9(a)(3) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) to incur at the time least $1.00 of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existadditional Indebtedness.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c))to any Person; provided that the foregoing restrictions do not apply to:: --------
(i1) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Wholly-owned Restricted Subsidiary (other than Brokers)Subsidiary; or
(ii2) the sale of assets (including by the Company or a Restricted Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1i) the sale of such property is for cash consideration which equals or exceeds the fair market value of the property so sold (as determined in good faith by the Board of Directors of the Company);
(ii) such property is leased by the Company or Restricted Subsidiary, as lessee, within 180 days of the sale of such property;
(iii) immediately after the consummation of the sale of such property and immediately after the consummation of the leaseback thereof by the Company or Restricted Subsidiary, as the case may be, and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Company would be permitted by the provisions of (S)(S)5.9(a)(3) and (4) to incur at least $1.00 of additional Indebtedness; and
(iv) the sale of such property and the leaseback thereof by the Company or a Restricted Subsidiary is otherwise consummated within the limitations of this Agreement;
(3) the sale of assets for cash or other property to a Person or Persons (other than an Affiliate) if all of the following conditions are met:
(i) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs immediately preceding 12 calendar month period (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)business), exceed 1510% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal year;
(2ii) in the opinion of a Responsible Officer of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3iii) immediately after the consummation of the transaction and after giving effect thereto thereto, (A) no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment Company would be permitted by the provisions of (S)(S)5.9(a)(3) and (4) to incur at least $1.00 of additional Indebtedness;
2.1. In the event any applicable prepayment premiumholder of Senior Indebtedness of the Company declines any such offer of prepayment, the Company shall offer, on a pro rata basis, the proceeds -------- so declined to the holders of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt Indebtedness of the Company then outstanding prior to unsecured Senior Funded Debt accepting the offer of the Companyprepayment. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than Computations pursuant to Section 10.8(b)(ithis (S)5.12(b) shall include dispositions made pursuant to (S)5.12(c) and computations pursuant to (S)5.12(c) shall include dispositions made pursuant to this (S)5.12(b)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiarynot, and will not permit any Restricted Subsidiary to to, sell, transfer pledge or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable including as "stock" for or convertible into such stock) to any Person other than the Company except purposes of this (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.S)5.12
Appears in 1 contract
Samples: Note Agreement (U S Rentals Inc)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, (i) consolidate with or be a party to a merger with any other Person, corporation or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this [SECTION]5.11) of the assets of the Company and its assetsRestricted Subsidiaries; provided provided, however, that:
(i1) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, ;
(2) the Company may consolidate or merge with any merger or consolidation involving a Restricted Subsidiary other corporation so long as (other than Brokersi) (other than a merger or consolidation with if the Company), a Restricted Subsidiary (other than Brokers) Company shall be the surviving or continuing corporation and corporation, (3y) at the time of such consolidation or merger and immediately after giving effect thereto, thereto no Default or Event of Default shall have occurred and be continuing, and (z) after giving effect to such consolidation or merger a Restricted Subsidiary would exist;
be permitted to incur at least $1.00 of additional Debt under the provisions of [SECTION]5.7, and (ii) if the Company may consolidate surviving or merge with or intocontinuing corporation is not the Company, or transfer all or substantially all of its assets to, any other corporation if (1v) the corporation which results from such merger or consolidation or merger (the "surviving corporation") is organized shall be incorporated under the laws of any state of the United States or the District of Columbia or Canadaany state thereof, (2) if the Company is not the surviving corporation, the due and punctual performance and observation of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value assets of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of its Subsidiaries located within the United States or and be engaged principally in the District ownership and operation of Columbia or Canadaa regulated public utility, (2w) such resulting entity shall execute and deliver to the registered Holders of the Notes an agreement satisfactory in form and substance to such Holders ratifying and confirming this Agreement and the Notes and expressly assuming the due and punctual payment of the principal and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and this Agreement to be performed or and observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principlesCompany, (3x) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; providedshall have occurred and be continuing, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (Ay) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such saleconsolidation or merger the subsidiaries of such surviving corporation would be permitted to incur at least $1.00 of additional Debt pursuant to [SECTION]5.7, leaseand (z) the surviving corporation shall deliver to the registered Holders of the Notes an opinion, transfer satisfactory in form and substance to the registered Holders of the Notes, of counsel satisfactory to the registered Holders of the Notes, to the effect that all requirements of this [SECTION]5.11(a)(2) have been satisfied; and
(3) any Restricted Subsidiary may sell, lease or otherwise dispose of all or any substantial part of its assets to the Company or any Wholly-owned Restricted Subsidiary.
(b) The Company will not permit any Restricted Subsidiary to issue or sell any shares of stock of any class (including as "stock" for the purposes of this [SECTION]5.11, any warrants, rights or options to purchase or otherwise acquire stock or other dispositionSecurities exchangeable for or convertible into stock) of such Restricted Subsidiary to any Person other than the Company or a Wholly-owned Restricted Subsidiary, except for the purpose of qualifying directors, or except in satisfaction of the validly pre-existing preemptive rights of minority shareholders in connection with the simultaneous issuance of stock to the Company and/or a Restricted Subsidiary whereby the Company and/or such Restricted Subsidiary maintain their same proportionate interest in such Restricted Subsidiary.
(c) The Company will not sell, transfer or otherwise dispose of any shares of stock of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokersdirectors) or any Debt Indebtedness of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of (except to the Company or a Wholly-owned Restricted Subsidiary) any Restricted Subsidiary Stock shares of stock or Debt any Indebtedness of any other Restricted Subsidiary (other than to the Company)Subsidiary, unless:
(i1) simultaneously with such sale, transfer transfer, or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of stock and all Debt Indebtedness of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii2) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock stock and Debt Indebtedness is in the best interest interests of the Company;
(iii3) said shares of Restricted Subsidiary Stock stock and Debt Indebtedness are sold, transferred or otherwise disposed of to a Person Person, for a cash consideration and on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv4) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v5) such sale, transfer sale or other disposition shall be treated does not involve a substantial part (as a disposition under hereinafter defined) of the assets of the Company and shall satisfy the requirements of Section 10.8(b) hereofits Restricted Subsidiaries.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock As used in this [SECTION]5.11, a sale, lease or other Securities exchangeable for disposition of assets shall be deemed to be a "substantial part" of the assets of the Company and its Restricted Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or convertible into such stock) to any Person otherwise disposed of by the Company and its Restricted Subsidiaries (other than in the ordinary course of business) during the 12-month period ending with the date of such sale, lease or other disposition, exceeds 10% of Consolidated Adjusted Total Assets, determined as of the end of the immediately preceding fiscal year; provided, however, that assets shall not be deemed to be sold, leased or otherwise disposed of for purposes of the computations required by the preceding provisions of this paragraph to the extent that the net proceeds therefrom remaining after satisfying any indebtedness secured by such assets shall, within 180 days from the date of such sale, lease or disposition thereof by the Company except or its Restricted Subsidiary, as the case may be, either (i) be used to qualify directors purchase capital assets for the Company and/or its Restricted Subsidiaries of a nature similar to and having a value at least equal to, the assets sold to obtain such proceeds, or (ii) in connection with an issuance applied to prepay the Notes or other Funded Debt of such stock whereby the Company maintains or its same proportionate interest Restricted Subsidiaries which is not subordinated to the Notes in such Restricted Subsidiaryright of payment.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company Obligors will not, and will not permit any of their respective Restricted Subsidiary Subsidiaries to, consolidate with or be a party to a merger with any other Personcorporation, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i1) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, the Company into any Obligor or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Companyan Obligor, the Company such Obligor shall be the surviving or continuing corporation, ;
(2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) the Company RMC may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes, this Agreement and any Supplement to be performed or observed by the Company RMC are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3iii) the surviving corporation RME shall have delivered to each holder confirm in writing its obligations under and in respect of the Notes financial rating letters evidencing thatNotes, at the time of such consolidation or merger this Agreement and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'xany Supplement, and (4iv) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and;
(iii3) the Company RMC may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this stock and Indebtedness of a Restricted Subsidiary, which may only be sold or otherwise disposed of pursuant to Section 10.8(a) and Section 10.8(c10.7(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of RMC, a copy of which determination, certified by the CompanySecretary or an Assistant Secretary of RMC, shall have been furnished to the holders of the Notes) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes, in this Agreement and in any Supplement to be performed or observed by the Company RMC are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3iii) the acquiring corporation RME shall have delivered to each holder confirmed in writing its obligations under and in respect of the Notes financial rating letters evidencing thatNotes, at the time of such consolidation or merger this Agreement and immediately after giving effect theretoany Supplement, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4iv) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company Obligors will not, and will not permit any of their respective Restricted Subsidiary Subsidiaries to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold or leased in the ordinary course of business for fair market value, value and except as provided in Section 10.8(a)(iii) and Section 10.8(c10.7(a)(3)); provided that the foregoing restrictions do not apply to:
(i1) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to an Obligor or a Wholly-owned Restricted Subsidiary; or
(2) the Company transfer made as a capital contribution to a corporation, partnership, limited partnership or limited liability company of certain real property used, or to be used, to grow grapes which is owned by an Obligor or a Restricted Subsidiary, provided that the power to direct or cause the direction of the management, operations and policies of such transferee entity is held by an Obligor or a Wholly-owned Restricted Subsidiary; or
(3) the sale, lease, transfer or other disposition of any fixed asset of an Obligor or a Restricted Subsidiary the book value of which at the time of such sale, lease, transfer or other disposition shall be less than $1,000,000; provided that in the opinion of the Board of Directors of such Obligor (i) the sale is for fair value and is in the best interests of such Obligor and (ii) such sale, lease, transfer or other than Brokersdisposition is not part of a plan by the Obligors to divest themselves of fixed assets (in which event such sale, lease, transfer or other disposition shall be made within the limitations of Sections 10.7(a)(3), (b)(6) or (c)(3)); or
(4) the sale or transfer of assets of an Obligor or a Restricted Subsidiary whenever it is determined in the good faith judgment of the Board of Directors of such Obligor that such assets are obsolete, worn-out or without economic value to such Obligor or any of its Restricted Subsidiaries; or
(5) the exchange in an arm's-length transaction of assets, provided that (i) the assets acquired by an Obligor or its Restricted Subsidiaries in connection with such exchange shall have a fair market value (as determined in good faith by the Board of Directors of such Obligor) equal to or greater than the fair market value of the assets disposed of by such Obligor or any of its Restricted Subsidiaries in connection with such exchange, (ii) the assets acquired by such Obligor or any of its Restricted Subsidiaries in connection with such exchange shall be similar in nature to the assets sold or otherwise disposed of in connection with such exchange, and (iii) the assets so acquired are free and clear of any Lien (other than Liens permitted by Section 10.5) and are useful and intended to be used in the business of such Obligor and its Restricted Subsidiaries as described in Section 10.8; or
(6) the sale of such assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1i) such assets (valued at net book value) do not, together with all other assets of the Company Obligors and its their respective Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs same fiscal year (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)business), exceed 1510% of Consolidated Total AssetsAssets determined as of the end of the immediately preceding fiscal quarter;
(2ii) in the opinion of the Company's Board of DirectorsDirectors of RMC, the sale is for fair value and is in the best interests of the CompanyObligors; and
(3iii) immediately after the consummation of the transaction and after giving effect thereto thereto, no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are (x) immediately after the consummation of such sale deposited in an escrow account with a depository institution or trust company of the character described in clause (g) of the definition of "Restricted Investments" contained in Schedule B acting as escrow agent, (y) invested in Investments of the character described in clauses (e), (f) and (g) of said definition of "Restricted Investments," and (z) applied within twelve months after of the date of sale of such assets to either (A) the acquisition of fixed assets useful and intended to be used in the operation of the business of the Company an Obligor and its respective Restricted Subsidiaries as described in Section 10.8 and having a fair market value (as determined in good faith by the Board of Directors of the Companysuch Obligor) at least equal to that of the assets so disposed of or and/or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt Indebtedness of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the CompanyObligors. It is understood and agreed by the Company Obligors that any such proceeds paid and applied to the optional prepayment of the Notes as hereinabove provided shall be prepaid made pursuant to an Asset Disposition Prepayment Offer as and to the extent provided in Section 8.2; or
(iii8.3. Computations pursuant to this Section 10.7(b) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than shall include dispositions made pursuant to Section 10.8(b)(i10.7(c) and computations pursuant to Section 10.7(c) shall include dispositions made pursuant to this Section 10.7(b)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company Obligors will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiarynot, and will not permit any Restricted Subsidiary to to, sell, transfer pledge or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or including as "stock" for the purposes of this Section any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) of a Restricted Subsidiary (said stock, options, warrants and other Securities herein called "Subsidiary Stock") or any Indebtedness of any Restricted Subsidiary, nor will any Restricted Subsidiary issue, sell, pledge or otherwise dispose of any shares of its own Subsidiary Stock, provided that the foregoing restrictions do not apply to:
(1) the issue of directors' qualifying shares; or
(2) the issue of Subsidiary Stock to RMC; or
(3) the sale or other disposition at any one time to a Person (other than directly or indirectly to an Affiliate) of the Company except entire Investment of the Obligors and their respective Restricted Subsidiaries in any Restricted Subsidiary if all of the following conditions are met:
(i) to qualify directors or the assets (valued at net book value) of such Restricted Subsidiary do not, together with all other assets of the Obligors and their respective Restricted Subsidiaries previously disposed of during the same fiscal year (other than in the ordinary course of business), exceed 10% of Consolidated Total Assets determined as of the end of the immediately preceding fiscal quarter;
(ii) in connection with the opinion of the Board of Directors of RMC, the sale is for fair value and is in the best interests of the Obligors;
(iii) immediately after the consummation of the transaction and after giving effect thereto, such Restricted Subsidiary shall have no Indebtedness of or continuing Investment in the capital stock of the Obligors or of any of their respective Restricted Subsidiaries and any such Indebtedness or Investment shall have been discharged or acquired, as the case may be, by an issuance Obligor or any of its Restricted Subsidiaries; and
(iv) immediately after the consummation of the transaction and after giving effect thereto, no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets of any Subsidiary so disposed of the proceeds of which were or are (x) deposited immediately after the consummation of such stock whereby sale in an escrow account with a depository institution or trust company of the Company maintains character described in clause (g) of the definition of "Restricted Investments" contained in Schedule B acting as escrow agent, (y) invested in Investments of the character described in clauses (e), (f) and (g) of said definition of "Restricted Investments," and (z) applied within twelve months of the date of sale of such assets to either (A) the acquisition of fixed assets useful and intended to be used in the operation of the business of an Obligor and its same proportionate interest respective Restricted Subsidiaries as described in Section 10.8 and having a fair market value (as determined in good faith by the Board of Directors of such Restricted SubsidiaryObligor) at least equal to that of the assets so disposed of and/or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Obligors. It is understood and agreed by the Obligors that any optional prepayment of the Notes as hereinabove provided shall be made pursuant to an Asset Disposition Prepayment Offer as and to the extent provided in Section 8.3. Computations pursuant to this Section 10.7(c) shall include dispositions made pursuant to Section 10.7(b) and computations pursuant to Section 10.7(b) shall include dispositions made pursuant to this Section 10.7(c).
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company Corporation will not, and will not permit any Restricted Subsidiary to, (i) consolidate with or be a party to a merger with any other Person, corporation or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this Section 18.4) of the assets of the Corporation and its assetsRestricted Subsidiaries (other than sales in the ordinary course of business or sales of properties sold pursuant to any Condemnation); provided provided, however, that:
(i1) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company Corporation or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the CompanyCorporation, the Company Corporation shall be the surviving or continuing corporation, ;
(2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) the Company Corporation may consolidate or merge with or into, or transfer and may sell all or substantially all of its assets in a single transaction to, any other corporation if (1i) the corporation which results from such consolidation consolidation, merger or merger sale (the "surviving corporationentity") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationSeries J Bonds and Series K Bonds, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Bonds and this Agreement indenture to be performed or observed by the Company Corporation are expressly assumed in writing by the surviving corporation entity and the surviving corporation entity shall furnish to the holders of the Notes Bonds an opinion of counsel reasonably satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation entity enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3iii) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation consolidation, merger or merger sale and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4A) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existexist and (B) the surviving entity would be permitted by the provisions of Section 18.2(a)(2) to incur at least $1.00 of additional Funded Debt; and
(iii3) the Company any Restricted Subsidiary may sell sell, lease or otherwise dispose of all or substantially all any substantial part of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation Corporation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existany Wholly-owned Restricted Subsidiary.
(b) The Company will not, and Corporation will not permit any Restricted Subsidiary toto issue any shares of stock of any class (including as "stock" for the purposes of this Section 18.4 any warrants, sell, lease, transfer, abandon rights or options to purchase or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer acquire stock or other disposition Securities exchangeable for or convertible into stock) of assets of a such Restricted Subsidiary to any Person other than the Company Corporation or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do notSubsidiary, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) unless immediately after the consummation of the such transaction and after giving effect thereto no Default or Event of Default would exist; providedthereto, however, that for purposes such Restricted Subsidiary shall remain a Restricted Subsidiary of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionCorporation.
(c) The Company Corporation will not sell, transfer or otherwise dispose of any shares of stock of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt Indebtedness of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of (except to the Corporation or a Restricted Subsidiary) any Restricted Subsidiary Stock shares of stock or Debt any Indebtedness of any other Restricted Subsidiary (other than to the Company)Subsidiary, unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii1) the Board of Directors of the Company Corporation shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock stock and Debt Indebtedness is in the best interest interests of the CompanyCorporation;
(iii2) said shares of Restricted Subsidiary Stock stock and Debt Indebtedness are sold, transferred or otherwise disposed of to a Person Person, for cash or other property and on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv3) in the case of the sale, transfer, or disposition of all shares of stock and Indebtedness of a Restricted Subsidiary, such Restricted Subsidiary being disposed of shall not have any continuing investment in the Company Corporation or any other Restricted Subsidiary not being simultaneously disposed of;
(4) in the case of the sale, transfer, or disposition of less than all of the shares of stock of a Restricted Subsidiary, immediately after the consummation of the transaction and after giving effect thereto, such Restricted Subsidiary shall remain a Restricted Subsidiary of the Corporation; and
(v5) such sale, transfer sale or other disposition shall be treated does not involve a substantial part (as a disposition under hereinafter defined) of the consolidated assets of the Corporation and shall satisfy the requirements of Section 10.8(b) hereofits Restricted Subsidiaries.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock As used in this Section 18.4, a sale, lease or other Securities exchangeable for disposition of assets shall be deemed to be a "substantial part" of the assets of the Corporation and its Restricted Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or convertible into such stock) otherwise disposed of by the Corporation and its Restricted Subsidiaries (other than in the ordinary course of business including without limitation property sold pursuant to any Person other than Condemnation) during the Company except immediately preceding 12 months, exceeds 10% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal year, provided, however, that for purposes of the foregoing calculation, there shall not be included the book value attributable to assets the proceeds from the disposition of which were or are applied within 180 days of the date of sale of such assets to either (i1) the acquisition of assets useful and intended to qualify directors be used in the operation of the business of the Corporation and its Restricted Subsidiaries as described in Section 18.1 and having a fair market value (as determined in good faith by the Board of Directors of the Corporation) at least equal to the assets so disposed of, or (ii2) the prepayment at any applicable prepayment premium, on a pro rata basis, of Funded Debt of the Corporation, provided that in connection with an issuance the event the assets which are the subject of any such stock whereby sale or disposition are subject to (A) the Company maintains its same proportionate interest Lien of the Mortgage Indenture, such proceeds shall be applied first to the prepayment of the First Mortgage Bonds as and to the extent required by the terms of the Mortgage Indenture or (B) the Lien of this indenture, such proceeds shall be applied first to the redemption of the Series J Bonds and Series K Bonds outstanding hereunder as and to the extent required by the terms of this indenture. It is understood and agreed by the Corporation that any such proceeds paid and applied to the redemption of the Series J or Series K Bonds as hereinabove provided shall be redeemed as and to the extent provided in such Restricted Subsidiarythis indenture.
Appears in 1 contract
Samples: First Supplement to Note Agreement (California Water Service Group)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(ia) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1i) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a the Wholly-owned Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation Person, unless and (3) at to the time extent any such merger or consolidation involving a Wholly-owned Restricted Subsidiary is consummated within the limitations of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existSection 10.7;
(iib) the Company may consolidate consolidate, merge or merge amalgamate with or into, or transfer all or substantially all of its assets to, into any other corporation legal entity if (1i) the corporation legal entity which results from such consolidation or merger (the "“surviving corporation"Person”) is organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation Person and the surviving corporation Person shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation Person enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) the surviving corporation Fund and each Subsidiary Guarantor shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect theretoaffirmed in writing their respective obligations under this Agreement, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P Subsidiary Guaranty and "Baa2" or better by Xxxxx'xeach Subordination Agreement, as applicable, and (4iv) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iiic) the Company may sell or otherwise dispose of all or substantially all of the assets of the Company and its assets Restricted Subsidiaries (other than as provided in this Section 10.8(a) and Section 10.8(c)10.7) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation legal entity organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation Person and the acquiring corporation Person shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation Person enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) the acquiring corporation Fund and each Subsidiary Guarantor shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect theretoaffirmed in writing their respective obligations under this Agreement, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P Subsidiary Guaranty and "Baa2" or better by Xxxxx'x each Subordination Agreement, as applicable, and (4iv) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i1) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Subsidiary (other than Brokers) so long as in (1i) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, and (2ii) any merger or consolidation involving a Restricted Wholly-Owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted the Wholly-Owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existPerson;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "“surviving corporation"”) is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and, and (iv) the Company or such surviving corporation shall have complied with all obligations under this Agreement with respect to any Change in Control resulting from such transaction;
(iii3) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1i) the Person which is acquiring Person all or substantially all of the assets of the Company is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4iii) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist, and (iv) the Company or such acquiring corporation shall have complied with all obligations under this Agreement with respect to any Change in Control resulting from such transaction; and
(4) the Company or any Subsidiary may sell or otherwise dispose of assets as part of any Permitted Receivables Transaction so long as, after giving effect thereto, the aggregate amount of Priority Debt (including Receivables Facility Attributed Indebtedness) does not exceed 25% of Maximum Permitted Total Debt.
(b) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, value and except as provided in Section 10.8(a)(iii) and Section 10.8(c10.5(a)(3)); provided that the foregoing restrictions do not apply to:
(1) (i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or another Subsidiary or by the Company to a Restricted Wholly-Owned Subsidiary or (ii) the sale, lease, transfer or other than Brokers)disposition of assets (valued at net book value) of the Company to another Subsidiary not to exceed in any 12-month period 10% of Consolidated Total Assets as of the last day of the fiscal quarter immediately preceding such sale, lease, transfer or other disposition; or
(ii2) the sale or other disposition of assets as part of any Permitted Receivables Transaction so long as, after giving effect thereto, the aggregate amount of Priority Debt (including Receivables Facility Attributed Indebtedness) does not exceed 25% of Maximum Permitted Total Debt; or
(3) the sale of inventory in the ordinary course of business; or
(4) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1i) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs immediately preceding 36 calendar month period (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)business), exceed 1530% of the average of Consolidated Total AssetsAssets as of the last day of each of the 12 consecutive fiscal quarters then most recently ended;
(2ii) in the opinion of the Company's Board of DirectorsDirectors of the Company, the sale is for fair value and is in the best interests of the CompanyCompany and its Subsidiaries; and
(3iii) immediately after before the consummation of the transaction and after giving effect thereto thereto, no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) within 12 months before or 12 months after the effective date of such asset disposition to the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in Section 10.6 and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) within 180 days after the effective date of such asset disposition to the prepayment at any applicable prepayment premium, premium of Senior Debt of the Company on a pro rata basis, of basis (other than (x) Senior Funded Debt of owing to the Company, provided that the Company may prepay any secured of its Subsidiaries or any Affiliate and (y) Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose respect of any Restricted Subsidiary Stock (except to qualify directors revolving credit or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in similar facility providing the Company or any other Restricted such Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer with the right to obtain loans or other disposition shall be treated as a disposition under and shall satisfy the requirements extensions of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary credit from time to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) time, unless in connection with such payment of Senior Debt, the availability of credit under such credit facility is permanently reduced by an issuance amount not less than the amount of such stock whereby proceeds applied to the payment of such Senior Debt), based upon principal amount then outstanding, provided that, the Company maintains its same proportionate interest offers to prepay (at par, without Make-Whole Amount or any premium) each outstanding Note, in accordance with Section 8.8, in a principal amount equal to the Ratable Portion of such Restricted SubsidiaryNote in respect of such asset disposition.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;corporation; and
(ii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) if the Company is not the surviving corporation, the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, : (A) no Default or Event of Default would exist; and
exist and (iiiB) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith surviving corporation would be permitted by the Board provisions of Directors Section 10.3 to incur at least $1.00 of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existadditional Indebtedness.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon as obsolete or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold sold, leased or otherwise disposed of in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Wholly-owned Subsidiary (other than Brokers)or from the Company to a Wholly-owned Subsidiary; or
(ii) the sale sale, transfer, abandonment or other disposition of assets of the Company or a Subsidiary if in the opinion of a Responsible Officer of the Company or such Subsidiary such assets are obsolete, worn-out or without material economic value to the business or operations of the Company or such Subsidiary; or
(including Subsidiary Stock disposed iii) the sale, lease, transfer or other disposition of pursuant to Section 10.8(c)) assets for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which period from the date of this Agreement to and including the date of the sale of such sale occurs assets (other than in the ordinary course of business and other than or pursuant to Section 10.8(b)(i)clauses (i) or (ii) above), exceed 1525% of Consolidated Total Assets, determined as set forth in the Company's most recently filed Form 10-K;
(2) in the opinion of a Responsible Officer of the Company or such Subsidiary if the aggregate sale price of such assets is $5,000,000 or less and the opinion of the Company's Board of DirectorsDirectors if the aggregate sale price of such assets is more than $5,000,000, the sale is for fair value and is in the best interests of the CompanyCompany or such Subsidiary; and
(3) immediately after the consummation of the transaction and after giving effect thereto thereto, no Specified Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Samples: Note Purchase Agreement (Insituform Technologies Inc)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Consolidated Subsidiary to, consolidate with or be a party to a merger with any other PersonPerson or dispose of all or a substantial part of the assets of the Company and its Consolidated Subsidiaries; provided that:
(1) any Consolidated Subsidiary may merge or consolidate with or into, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all a substantial part of its assets to, to the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as (A) (i) in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, and (3B) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;; Allied Capital Corporation Note Agreement
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement Agreement, to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such holders the Holder or Holders of 51% or more of the principal amount of the Notes at the time outstanding to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect theretothereto and to the incurrence of any Debt assumed or incurred in connection therewith, (x) the aggregate amount of outstanding Consolidated Debt and Priority Debt of the surviving corporation would be permitted by the terms of SECTION 5.8 as of the last day of the fiscal quarter immediately preceding the date of such consolidation or merger, and (y) no Default or Event of Default would exist; and
(iii3) the Company may sell and any Consolidated Subsidiary may, sell, transfer or otherwise dispose of all or substantially all any part of its assets (other than as provided Investments in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value ordinary course of such assets (as determined business including, without limitation, in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existsecuritization transactions.
(b) The Company will notnot permit any Consolidated Subsidiary to issue any Voting Stock of such Consolidated Subsidiary except to satisfy the rights of minority shareholders to receive issuances of stock which are non-dilutive to the Company and/or any Consolidated Subsidiary; provided that the foregoing restrictions do not apply to issuances to the Company or to a Wholly-owned Subsidiary or the issuance of directors' qualifying shares.
(c) The Company will not sell, transfer or otherwise dispose of stock or Debt of any Consolidated Subsidiary (except issuance of directors' qualifying shares and sales, transfers and dispositions of all the stock of a special purpose Consolidated Subsidiary for consideration if (x) substantially all the assets of such Consolidated Subsidiary constitute Investments and (y) the sale, transfer or disposition of all such Investments for substantially the same consideration would be permitted by SECTION 5.11(a)(3)) and will not permit any Restricted Consolidated Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets stock (otherwise than by purchase or redemption of preferred stock) of a Consolidated Subsidiary or Debt of any other Consolidated Subsidiary (except (x) Excluded Assets and (y) assets sold in issuances to the ordinary course Company or to a Wholly-owned Subsidiary or issuance of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)directors' qualifying shares); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) all shares of stock and all Debt of such assets (valued at net book value) do not, together with all other assets of Consolidated Subsidiary held by the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;shall be sold simultaneously; Allied Capital Corporation Note Agreement
(2) in the opinion of the Company's Board of Directors, the :
(i) such sale is for fair value and of stock or Debt is in the best interests of the Company; and
(ii) the consideration paid for such stock and Debt is deemed adequate and satisfactory.
(3) immediately after the consummation Consolidated Subsidiary being disposed of shall not have any continuing investment in the Company or any Consolidated Subsidiary that is not being disposed of simultaneously; and
(4) such sale or disposition does not involve a substantial part of assets of the transaction Company and after giving effect thereto no Default its Consolidated Subsidiaries. As used in this SECTION 5.11, a sale of assets will be deemed a "substantial part" of the assets of the Company and its Consolidated Subsidiaries if (i) the Book Value of such assets sold in a given fiscal year (except those sold in the ordinary course of business) exceeds 15% of the Consolidated Total Assets of the Company and its Consolidated Subsidiaries determined at the close of the immediately preceding fiscal year, or Event (ii) the operations of Default would existsuch assets sold (except those sold in the ordinary course of business) generated 15% or more of the consolidated operating profit of the Company and its Consolidated Subsidiaries during the immediately preceding fiscal year; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets if a portion of the proceeds of which were such assets equal to the aggregate Book Value thereof immediately prior to such sale was or are is applied within twelve months after 365 days of the date of sale of such assets to either (A) the acquisition of assets Investments useful and intended to be used in the operation of the business of the Company and its Restricted Consolidated Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that the Book Value of the assets so disposed of of, or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionSECTION 2.2.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Samples: Note Agreement (Allied Capital Corp)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Consolidated Subsidiary to, consolidate with or be a party to a merger with any other PersonPerson or dispose of all or a substantial part of the assets of the Company and its Consolidated Subsidiaries; provided that:
(1) any Consolidated Subsidiary may merge or consolidate with or into, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all a substantial part of its assets to, to the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as (A) (i) in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, and (3B) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement Agreement, to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such the holder or holders of 51% or more of the principal amount of the Notes at the time outstanding to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect theretothereto and to the incurrence of any Debt assumed or incurred in connection therewith, no Default or Event (x) the aggregate amount of Default would exist; andoutstanding Consolidated Debt and Priority Debt of the surviving
(iii3) the Company may sell and any Consolidated Subsidiary may, sell, transfer or otherwise dispose of all or substantially all any part of its assets (other than as provided Investments in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value ordinary course of such assets (as determined business including, without limitation, in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existsecuritization transactions.
(b) The Company will not, and will not permit any Restricted Consolidated Subsidiary to, sell, lease, transfer, abandon or otherwise dispose to issue any Voting Stock of assets (such Consolidated Subsidiary except (x) Excluded Assets and (y) assets sold in to satisfy the ordinary course rights of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c))minority shareholders to receive issuances of stock which are non-dilutive to the Company and/or any Consolidated Subsidiary; provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to issuances to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person Wholly-owned Subsidiary or Persons other than an Affiliate if all the issuance of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositiondirectors' qualifying shares.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors stock or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted SubsidiaryConsolidated Subsidiary (except issuance of directors' qualifying shares and sales, transfers and dispositions of all the stock of a special purpose Consolidated Subsidiary for consideration if (x) substantially all the assets of such Consolidated Subsidiary constitute Investments and (y) the sale, transfer or disposition of all such Investments for substantially the same consideration would be permitted by Section 5.11(a)(3)) and will not permit any Restricted ConsolidATED Subsidiary to sell, transfer or otherwise dispose of any Restricted stock (otherwise than by purchase or redemption of preferred stock) of a Consolidated Subsidiary Stock or Debt of any Restricted other Consolidated Subsidiary (other than except issuances to the Company or to a Wholly-owned Subsidiary or issuance of directors' qualifying shares); provided that the foregoing restrictions do not apply if the following conditions are met:
(1) all shares of stock and all Debt of such Consolidated Subsidiary held by the Company and its Subsidiaries shall be sold simultaneously;
(2) in the opinion of the Company), unless's Board of Directors:
(i) simultaneously with such sale, transfer sale of stock or disposition, all shares Debt is in the best interests of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;Company; and
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock consideration paid for such stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;.
(iv3) the Restricted Consolidated Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Consolidated Subsidiary that is not being simultaneously disposed ofof simultaneously; and
(v4) such sale, transfer sale or other disposition shall be treated as does not involve a disposition under and shall satisfy the requirements substantial part of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any assets of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except and its Consolidated Subsidiaries. As used in this Section 5.11, a sale of assets will be deemed a "substantial part" of the assets of the Company and its Consolidated Subsidiaries if (i) to qualify directors or (ii) in connection with an issuance the book value of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.assets sold in
Appears in 1 contract
Samples: Note Agreement (Allied Capital Corp)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Consolidated Subsidiary to, consolidate with or be a party to a merger with any other PersonPerson or dispose of all or a substantial part of the assets of the Company and its Consolidated Subsidiaries; provided that:
(1) any Consolidated Subsidiary may merge or consolidate with or into, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all a substantial part of its assets to, to the Company or any Restricted Wholly-Owned Subsidiary (other than Brokers) so long as (A) (i) in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Restricted Wholly-Owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted Wholly-Owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, and (3B) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "“surviving corporation"”) is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and Premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes, this Agreement and any Supplement, to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such holders the Holder or Holders of 51% or more of the principal amount of the Notes at the time outstanding to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect theretothereto and to the incurrence of any Debt assumed or incurred in connection therewith, (x) the aggregate amount of outstanding Consolidated Debt and Priority Debt of the surviving corporation would be permitted by the terms of §5.7(c) and (d) as of the last day of the fiscal quarter immediately preceding the date of such consolidation or merger, and (y) no Default or Event of Default would exist; and
(iii3) the Company may sell and any Consolidated Subsidiary may, sell, transfer or otherwise dispose of all or substantially all any part of its assets (other than as provided Investments in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value ordinary course of such assets (as determined business including, without limitation, in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existsecuritization transactions.
(b) The Company will notnot permit any Consolidated Subsidiary to issue any Voting Stock of such Consolidated Subsidiary except to satisfy the rights of minority shareholders to receive issuances of stock which are non-dilutive to the Company and/or any Consolidated Subsidiary; provided that the foregoing restrictions do not apply to issuances to the Company or to a Wholly-Owned Subsidiary or the issuance of directors’ qualifying shares.
(c) The Company will not sell, transfer or otherwise dispose of stock or Debt of any Consolidated Subsidiary (except issuance of directors’ qualifying shares and sales, transfers and dispositions of all the stock of a special purpose Consolidated Subsidiary for consideration if (x) substantially all the assets of such Consolidated Subsidiary constitute Investments and (y) the sale, transfer or disposition of all such Investments for substantially the same consideration would be permitted by §5.11(a)(3)) and will not permit any Restricted Consolidated Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets stock (otherwise than by purchase or redemption of preferred stock) of a Consolidated Subsidiary or Debt of any other Consolidated Subsidiary (except (x) Excluded Assets and (y) assets sold in issuances to the ordinary course Company or to a Wholly-Owned Subsidiary or issuance of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)directors’ qualifying shares); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) all shares of stock and all Debt of such assets (valued at net book value) do not, together with all other assets of Consolidated Subsidiary held by the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assetsshall be sold simultaneously;
(2) in the opinion of the Company's Board ’s board of Directors, the directors:
(i) such sale is for fair value and of stock or Debt is in the best interests of the Company; and
(ii) the consideration paid for such stock and Debt is deemed adequate and satisfactory.
(3) immediately after the consummation Consolidated Subsidiary being disposed of shall not have any continuing investment in the Company or any Consolidated Subsidiary that is not being disposed of simultaneously; and
(4) such sale or disposition does not involve a substantial part of assets of the transaction Company and after giving effect thereto no Default its Consolidated Subsidiaries. As used in this §5.11, a sale of assets will be deemed a “substantial part” of the assets of the Company and its Consolidated Subsidiaries if (i) the Book Value of such assets sold in a given fiscal year (except those sold in the ordinary course of business) exceeds 15% of the Consolidated Total Assets of the Company and its Consolidated Subsidiaries determined at the close of the immediately preceding fiscal year, or Event (ii) the operations of Default would existsuch assets sold (except those sold in the ordinary course of business) generated 15% or more of the consolidated operating profit of the Company and its Consolidated Subsidiaries during the immediately preceding fiscal year; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets if a portion of the proceeds of which were such assets equal to the aggregate Book Value thereof immediately prior to such sale was or are is applied within twelve months after 365 days of the date of sale of such assets to either (A) the acquisition of assets Investments useful and intended to be used in the operation of the business of the Company and its Restricted Consolidated Subsidiaries and having a fair market value (as determined in good faith by the Board board of Directors directors of the Company) at least equal to that the Book Value of the assets so disposed of of, or (B) the prepayment at any applicable prepayment premiumPremium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition§2.2.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Samples: Note Agreement (Allied Capital Corp)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, (i) consolidate with or be a party to a merger with any other Person, corporation or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this ss.5.8) of the assets of the Company and its assetsRestricted Subsidiaries (other than sales in the ordinary course of business or sales of properties sold pursuant to any Condemnation); provided provided, however, that:
(i1) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii2) the Company may consolidate or merge with or into, or transfer and may sell all or substantially all of its assets in a single transaction to, any other corporation if (1i) the corporation which results from such consolidation consolidation, merger or merger sale (the "surviving corporationentity") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation entity and the surviving corporation entity shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation entity enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3iii) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation consolidation, merger or merger sale and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4A) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; andexist and (B) the surviving entity would be permitted by the provisions of ss.5.6(a)(3) to incur at least $1.00 of additional Funded Debt;
(iii3) the Company any Restricted Subsidiary may sell sell, lease or otherwise dispose of all or substantially all any substantial part of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existany Wholly-owned Restricted Subsidiary.
(b) The Company will notnot permit any Restricted Subsidiary to issue any shares of stock of any class (including as "stock" for the purposes of this ss.5.8, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) of such Restricted Subsidiary to any Person other than the Company or a Restricted Subsidiary, unless immediately after the consummation of such transaction and after giving effect thereto, such Restricted Subsidiary shall remain a Restricted Subsidiary of the Company.
(c) The Company will not sell, transfer or otherwise dispose of any shares of stock of any Restricted Subsidiary or any Indebtedness of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (Subsidiary) any shares of stock or any Indebtedness of any other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are metRestricted Subsidiary, unless:
(1) such assets (valued at net book value) do not, together with all other assets the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of stock and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and Indebtedness is in the best interests of the Company; and;
(2) said shares of stock and Indebtedness are sold, transferred or otherwise disposed of to a Person, for cash or other property and on terms reasonably deemed by the Board of Directors to be adequate and satisfactory;
(3) in the case of the sale, transfer, or disposition of all shares of stock and Indebtedness of a Restricted Subsidiary, such Restricted Subsidiary shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of;
(4) in the case of the sale, transfer, or disposition of less than all of the shares of stock of a Restricted Subsidiary, immediately after the consummation of the transaction and after giving effect thereto no Default thereto, such Restricted Subsidiary shall remain a Restricted Subsidiary of the Company; and
(5) such sale or Event other disposition does not involve a substantial part (as hereinafter defined) of Default would exist; the consolidated assets of the Company and its Restricted Subsidiaries.
(d) As used in this ss.5.8, a sale, lease or other disposition of assets shall be deemed to be a "substantial part" of the assets of the Company and its Restricted Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Company and its Restricted Subsidiaries (other than in the ordinary course of business including without limitation property sold pursuant to any Condemnation) during the immediately preceding 12 months, exceeds 10% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal year, provided, however, that for purposes of the foregoing calculation, there shall not be included any the book value attributable to assets the proceeds from the disposition of which were or are applied within twelve months after 180 days of the date of sale of such assets to either (A1) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in ss.5.5 and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of of, or (B2) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that in the Company may prepay event the assets which are the subject of any secured Senior Funded Debt such sale or disposition are subject to the Lien of the Company then outstanding prior Mortgage Indenture, such proceeds shall be applied first to unsecured Senior Funded Debt the prepayment of the CompanyFirst Mortgage Bonds as and to the extent required by the terms of the Mortgage Indenture. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionss.2.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company Each of the Parent Guarantor and the Issuer will not, and will not permit any Restricted Subsidiary thereof to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; assets provided that:
(i1) any Subsidiary (other than the Issuer) may merge or consolidate with or into, or transfer sell or otherwise dispose of all or substantially all of its assets to, the Company Parent Guarantor, the Issuer or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as (i) in (1) any merger merger, consolidation or consolidation sale involving the CompanyParent Guarantor, the Company Issuer or a Wholly-owned Subsidiary, the Parent Guarantor, the Issuer or a Wholly-owned Subsidiary, as the case may be, shall be the surviving or continuing corporation, (2ii) in any merger merger, consolidation or consolidation sale involving a Restricted Wholly-owned Subsidiary, such Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation organized and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of domiciled in the United States of America, any state thereof or the District of Columbia or CanadaColumbia, (2iii) if in the Company event that such Subsidiary is not the Subsidiary Guarantor and unless the Parent Guarantor or the Issuer is the surviving corporation, the guarantee of the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in this Agreement the Subsidiary Guaranty to be performed or observed by the Company Subsidiary Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, principles and (4iv) at the time of such consolidation or merger and immediately after giving effect thereto, thereto no Default or Event of Default would exist; and.
(iii2) the Company Issuer may merge or consolidate with or into, or sell or otherwise dispose of all or substantially all of its assets (to, any other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition corporation if (1i) the acquiring Person corporation which results from such consolidation or merger (the "surviving corporation") is a not Insolvent, (ii) the surviving corporation shall be organized under the laws of any state of and domiciled in the United States of America, any state thereof or the District of Columbia or CanadaColumbia, (2iii) unless the Issuer is the surviving corporation, the payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observance observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company Issuer are expressly assumed in writing by the acquiring surviving corporation and the acquiring surviving corporation shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3iv) the acquiring corporation shall have delivered to each holder obligations of the Notes financial rating letters evidencing thatParent Guarantor under this Agreement and of the Subsidiary Guarantor under the Subsidiary Guaranty are expressly affirmed in writing, and (v) at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, thereto no Default or Event of Default would exist.exist (3) the Parent Guarantor may consolidate or merge with or into any other corporation if (i) the corporation which results from such consolidation or merger (the "surviving corporation") is not Insolvent, (ii) the surviving corporation shall be organized and domiciled in the United States of America, any state thereof or the District of Columbia, (iii) unless the Parent Guarantor is the surviving corporation, the guarantee of the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and
(b) The Company Each of the Parent Guarantor and the Issuer will not, and will not permit any Restricted Subsidiary thereof to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iiibusiness) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
: (i1) subject to compliance with the terms and provisions of SECTION 5.13(B), the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company Parent Guarantor, the Issuer or a Restricted Wholly-owned Subsidiary or (other than Brokers); or
(ii2) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
: (1i) such assets (valued at net book value) do not, together with all other assets of the Company Parent Guarantor and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs immediately preceding twelve month period (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), business) exceed 15% of Consolidated Total Assets;
, determined as of the end of the immediately preceding fiscal quarter (2ii) if the fair market value of such property is more than $5,000,000, in the opinion of the CompanyParent Guarantor's Board of Directors, Directors or a Responsible Officer of the Parent Guarantor the sale is for fair value and is in the best interests of the Company; and
Parent Guarantor and its Subsidiaries, taken as a whole and (3iii) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; exist provided, however, that for purposes of the foregoing calculation, there shall not be included any assets to the extent that the net proceeds of which the sale of such assets were or are applied within twelve months 365 days after the date of sale of such assets to either (A) the acquisition of fixed assets useful and intended to be
(c) Each of the Parent Guarantor and the Issuer will not, and will not permit any Subsidiary thereof to, sell, pledge or otherwise dispose of any shares of the stock (including as "stock" for the purposes of this SECTION 5.12(C) any options or warrants to purchase stock or other Securities exchangeable for or convertible into stock) of a Subsidiary (said stock, options, warrants and other Securities herein called "Subsidiary Stock") or any Indebtedness held by the Parent Guarantor, the Issuer or any Subsidiary of any other Subsidiary, nor will any Subsidiary issue, sell, pledge or otherwise dispose of any shares of its own Subsidiary Stock provided that the foregoing restrictions do not apply to:
(1) the issue of directors' qualifying shares or (2) subject to compliance with the terms and provisions of SECTION 5.13(B), the issue of Subsidiary Stock or such Indebtedness to the Parent Guarantor or to another Wholly-owned Subsidiary or (3) the issue, sale or other disposition at any one time to a Person (other than directly or indirectly to an Affiliate) of the entire Investment of the Parent Guarantor and its other Subsidiaries in any Subsidiary if all of the following conditions are met: (i) the book value of such Subsidiary Stock does not, together with all other assets of the Parent Guarantor and its Subsidiaries previously disposed of during the immediately preceding twelve month period (other than in the ordinary course of business) exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarter (ii) if the fair market value of such Subsidiary Stock exceeds $5,000,000, in the opinion of the Parent Guarantor's Board of Directors or a Responsible Officer of the Parent Guarantor, the sale is for fair value and is in the best interests of the Parent Guarantor and its Subsidiaries, taken as a whole (iii) immediately after the consummation of the transaction and after giving effect thereto, such Subsidiary shall have no Indebtedness of or continuing Investment in the capital stock of the Parent Guarantor, the Issuer or of any Subsidiary and any such Indebtedness or Investment shall have been discharged or acquired, as the case may be, by the Parent Guarantor, the Issuer or a Subsidiary and (iv) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist provided, however, that for purposes of the foregoing calculation, there shall not be included any Subsidiary Stock to the extent that the net proceeds of the sale of such Subsidiary Stock were or are applied within 365 days of the date of sale of such Subsidiary Stock to either (A) the acquisition of fixed assets useful and intended to be used in the operation of the business of the Company Parent Guarantor and its Restricted Subsidiaries as described in SECTION 5.6 and having a fair market value (as determined in good faith by the Board of Directors of the CompanyParent Guarantor) at least equal to that of the assets net proceeds applied from the sale of the Subsidiary Stock so disposed of or (B) the prepayment at any applicable prepayment premium, of Senior Funded Debt on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company Parent Guarantor and the Issuer that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than SECTION 2.4. Computations pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(cthis SECTION 5.12(C) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.include 18
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(ia) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as in (1i) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted the Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existlimited liability company;
(iib) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation or limited liability company which results from such consolidation or merger (the "“surviving corporation"”) is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) each Subsidiary Guarantor confirms in writing its obligations under the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'xSubsidiary Guaranty, and (4iv) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and;
(iiic) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) a single transaction or series of transactions to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors a Responsible Officer of the Company) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) each Subsidiary Guarantor confirms in writing its obligations under the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing thatSubsidiary Guaranty, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4iv) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(ia) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as in (1i) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted the Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existlimited liability company;
(iib) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation or limited liability company which results from such consolidation or merger (the "“surviving corporation"”) is a solvent entity organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) each Subsidiary Guarantor confirms in writing its obligations under the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing thatSubsidiary Guaranty, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iv) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; andexist and (v) at the time of such consolidation or merger and immediately after giving effect thereto, the surviving corporation shall be in compliance with Sections 10.1 and 10.3 hereof (treating, for purposes of determining compliance with Sections 10.1 and 10.3, such transaction as having been consummated on the last day of the immediately preceding fiscal quarter);
(iiic) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) a single transaction or series of transactions to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors a Responsible Officer of the Company) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada(the “acquiring corporation”), (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) each Subsidiary Guarantor confirms in writing its obligations under the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing thatSubsidiary Guaranty, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4iv) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets exist and (yv) assets sold in at the ordinary course time of business for fair market value, sale or disposition and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; providedthereto, howeverthe acquiring corporation, that shall be in compliance with Sections 10.1 and 10.3 hereof (treating, for purposes of determining compliance with Sections 10.1 and 10.3, such transaction as having been consummated on the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation last day of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(iimmediately preceding fiscal quarter)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(ia) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1i) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a the Wholly-owned Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, unless and (3) at to the time extent any such merger or consolidation involving a Wholly-Owned Restricted Subsidiary is consummated within the limitations of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existSection 10.8(b);
(iib) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "“surviving corporation"”) is organized under the laws of any state of the United States or the District of Columbia or Canadaunder the laws of Canada or any province thereof, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and;
(iiic) the Company may sell or otherwise dispose of all or substantially all of the assets of the Company and its assets Restricted Subsidiaries (other than as provided in this Section 10.8(a) and Section 10.8(c)10.8) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canadaunder the laws of Canada or any province thereof, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4iii) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i1) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Wholly-Owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted the Wholly-Owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existPerson;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1) the corporation which results from such consolidation or merger (the "“surviving corporation"”) is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and, and (4) the Company or such surviving corporation shall have complied with all obligations under this Agreement with respect to any Change in Control resulting from such transaction;
(iii3) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the Person which is acquiring Person all or substantially all of the assets of the Company is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist, and (4) the Company or such acquiring corporation shall have complied with all obligations under this Agreement with respect to any Change in Control resulting from such transaction; and
(4) the Company or any Subsidiary may sell or otherwise dispose of assets as part of any Permitted Receivables Transaction so long as the aggregate amount of Priority Debt (including Receivables Facility Attributed Indebtedness) does not exceed 25% of Maximum Permitted Total Debt.
(b) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, value and except as provided in Section 10.8(a)(iii) and Section 10.8(c10.5 (a)(iii)); provided that the foregoing restrictions do not apply to:
(i1) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or another Subsidiary or by the Company to a Restricted Wholly-Owned Subsidiary or (2) the sale, lease, transfer or other than Brokers)disposition of assets (valued at net book value) of the Company to another Subsidiary not to exceed in any 12-month period 10% of Consolidated Total Assets as of the last day of the fiscal quarter immediately preceding such sale, lease, transfer or other disposition; or
(ii2) the sale or other disposition of assets as part of any Permitted Receivables Transaction so long as the aggregate amount of Priority Debt (including Receivables Facility Attributed Indebtedness) does not exceed 25% of Maximum Permitted Total Debt; or
(3) the sale of inventory in the ordinary course of business; or
(4) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs immediately preceding 36 calendar month period (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)business), exceed 1530% of the average of Consolidated Total AssetsAssets as of the last day of each of the 12 consecutive fiscal quarters then most recently ended;
(2) in the opinion of the Company's Board of DirectorsDirectors of the Company, the sale is for fair value and is in the best interests of the CompanyCompany and its Subsidiaries; and
(3) immediately after the consummation of the transaction and after giving effect thereto thereto, no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) within 12 months before or 12 months after the effective date of such asset disposition to the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in Section 10.8 and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) within 180 days after the effective date of such asset disposition to the prepayment at any applicable prepayment premium, premium of all Senior Debt of the Company on a pro rata basis, of basis (other than (x) Senior Funded Debt of owing to the Company, provided that any of its Subsidiaries or any Affiliate and (y) Senior Debt in respect of any revolving credit or similar facility providing the Company may prepay or any secured such Subsidiary with the right to obtain loans or other extensions of credit from time to time, unless in connection with such payment of Senior Funded Debt Debt, the availability of credit under such credit facility is permanently reduced by an amount not less than the Company amount of such proceeds applied to the payment of such Senior Debt), based upon principal amount then outstanding prior to unsecured Senior Funded Debt of the Companyoutstanding. It is understood and agreed by the Company that that, to the extent any such proceeds paid and are applied to the prepayment of the Notes, such prepayment will be made on a pro rata basis in respect of all Notes as hereinabove provided shall be prepaid as of all Series outstanding at such time in the manner and with the premium, if any, then required pursuant to the extent optional prepayment provisions provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company Guarantor will not, and will not permit any Restricted Subsidiary to, (i) consolidate with or be a party to a merger with any other Person, corporation or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (b) of this SECTION 6.3) of the assets of the Guarantor and its Subsidiaries (for purposes of the restrictions contained in this SECTION 6.3, the direct issuance and sale by a Subsidiary of any of its assetsstock (including as "stock" any warrants, rights or options to acquire, or securities exchangeable for, its stock) or if the Subsidiary is not a corporation, any equity interest of such Subsidiary to a Person other than the Guarantor or another Subsidiary shall be deemed to be a sale of assets of the Guarantor and its Subsidiaries and subject to such restrictions); provided provided, however, that:
(i1) any Subsidiary may merge or consolidate with or intointo the Guarantor or any other Subsidiary so long as in any merger or consolidation involving the Guarantor, the Guarantor shall be the surviving or transfer continuing corporation;
(2) the Guarantor may consolidate or merge with any other corporation or sell all or substantially all of its assets to, the Company or any Restricted Subsidiary provided that: (other than BrokersA) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, entity (2if it is not the Guarantor) any merger or consolidation involving a Restricted Subsidiary the Person to which such assets are transferred (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation"x) is organized and existing under the laws of any state of the United States or the District of Columbia or Canadaany state thereof, (2y) if concurrently with the Company is not the surviving corporationconsummation of such merger, the due consolidation or transfer of assets assumes in writing all rights and punctual performance and observation of all obligations of the Guarantor under this Guaranty, including the obligations to observe the covenants in this Agreement hereunder, and delivers a copy thereof to be performed or observed by the Company are expressly assumed in writing by the surviving corporation Trustee and the surviving corporation shall furnish to the holders of all Notes then outstanding, (z) shall have caused to be delivered to the Trustee and the holders of all Notes then outstanding an opinion of independent counsel reasonably satisfactory to such holders the Required Holders, to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation is enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, ; and (4B) at the time of such consolidation consolidation, merger or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose transfer of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would existshall have occurred and be continuing;
(3) any Subsidiary may sell, lease or otherwise dispose of all or any substantial part of its assets to the Guarantor or a Wholly-owned Subsidiary; provided, however, that for purposes of and
(4) the foregoing calculation, there provisions of paragraph (a) of this SECTION 6.3 shall not be included in any assets way limit or restrict the proceeds sales, transfers or other dispositions permitted in paragraph (c) of which were or are applied within twelve months after the date of sale of such assets to either this SECTION 6.3.
(Ab) the acquisition of assets useful and intended to be As used in the operation of the business of the Company and its Restricted Subsidiaries and having this SECTION 6.3, a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer lease or other disposition of assets or Subsidiary Stock shall be deemed to be a "substantial part" of Brokers if all the assets of the Company Guarantor and its Restricted Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of during by the Fiscal Year in which such sale occurs Guarantor and its Subsidiaries (other than in the ordinary course of business, other than assets or Subsidiary Stock ) during the 12-month period ending with the date of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer lease or other disposition, exceeds 10% of Tangible Assets, determined as of the end of the immediately preceding fiscal year; provided, however, that assets shall not be deemed to be sold, leased or otherwise disposed of for purposes of making the computations required by the preceding provisions of this SECTION 6.3 for any sales, transfers or dispositions permitted pursuant to paragraph (c) of this SECTION 6.3.
(c) The Notwithstanding any of the foregoing provisions of this SECTION 6.3 to the contrary, but subject to compliance by the Company will not with SECTION 3.04 of the Indenture, the Guarantor and its Subsidiaries may at any time sell, transfer or otherwise dispose of any Restricted Subsidiary Stock Partnership Interests (except to qualify directors or as defined in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of BrokersCompany Partnership Agreement) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to in the Company), unless:
(i) simultaneously with such saleprovided, transfer or disposition, all shares that after giving effect thereto the Guarantor and its Subsidiaries shall own at least 51% of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by Partnership Interests in the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereofcompliance with SECTION 5.6.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Samples: Guaranty Agreement (Energysouth Inc)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, : (i) consolidate with or be a party to a merger with any other PersonPerson or (ii) license, or selltransfer, lease sell or otherwise dispose of (herein a "Disposition") all or substantially all any part of the assets of the Company and its assets; provided Restricted Subsidiaries, provided, however, that:
(i1) any Restricted Subsidiary may merge or consolidate with or intointo the Company, or transfer all or substantially all of its assets to, the Company any Wholly-owned Restricted Subsidiary or any Restricted Subsidiary (other than Brokers) Person so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporationentity and in the case of any merger or consolidation with any other Person, such Person shall, after giving effect to such merger or consolidation, be a Wholly-owned Restricted Subsidiary;
(2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger may sell or consolidation with otherwise dispose of all or any part of its assets to the Company), a Company or any Wholly-owned Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existSubsidiary;
(ii3) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation Person if (1i) the corporation Person which results from such consolidation or merger (the "surviving corporationentity") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement and the Security Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation entity and the surviving corporation entity shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation entity enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and;
(iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
subject always to clause (b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionss.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, (i) consolidate with or be a party to a merger with any other Person, corporation or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this Section 5.10) of the assets of the Company and its assets; provided Restricted Subsidiaries, provided, however, that:
(i1) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any other Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, ;
(2) any merger or consolidation involving a Restricted Subsidiary (may merge or consolidate with any other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be corporation so long as the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existshall be a Restricted Subsidiary;
(ii3) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, any other corporation if so long as (1i) the corporation which results from such merger or consolidation or merger (the "surviving corporation") is organized shall be incorporated under the laws of any state of the United States or any state thereof, have substantially all of its assets and the District assets of Columbia or Canadaits Subsidiaries located within the United States and be engaged principally in the ownership and operation of a regulated public utility, (2ii) if the Company is not the surviving resulting corporation, if other than the due Company, shall execute and punctual performance and observation of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish deliver to the registered holders of the Notes an opinion of counsel agreement satisfactory in form and substance to such holders to ratifying and confirming this Agreement and the effect that Notes and expressly assuming the instrument of assumption has been duly authorized, executed due and delivered and constitutes the legal, valid and binding contract and agreement punctual payment of the surviving corporation enforceable in accordance with its termsprincipal and Make‑Whole Amount, except as enforcement of such terms may be limited by bankruptcyif any, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder interest on all of the Notes financial rating letters evidencing thatNotes, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'xaccording to their tenor, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in the Notes and this Agreement to be performed or and observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principlesCompany, (3iii) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; providedshall have occurred and be continuing, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (Aiv) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer consolidation or other disposition.
merger the surviving corporation would be permitted to incur at least $1.00 of additional Funded Debt pursuant to paragraph (c4) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i5.6(a), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such salethe surviving corporation shall deliver to the registered holders of the Notes an opinion, transfer or other disposition shall be treated as a disposition under satisfactory in form and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.substance to
Appears in 1 contract
Samples: Note Agreement (SJW Corp)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i1) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Subsidiary (other than Brokers) so long as in (1i) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, and (2ii) any merger or consolidation involving a Restricted Wholly-Owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted the Wholly-Owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existPerson;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "“surviving corporation"”) is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and, and (iv) the Company or such surviving corporation shall have complied with all obligations under this Agreement with respect to any Change in Control resulting from such transaction;
(iii3) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1i) the Person which is acquiring Person all or substantially all of the assets of the Company is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders the Required Holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4iii) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist, and (iv) the Company or such acquiring corporation shall have complied with all obligations under this Agreement with respect to any Change in Control resulting from such transaction; and
(4) the Company or any Subsidiary may sell or otherwise dispose of assets as part of any Permitted Receivables Transaction so long as the aggregate amount of Priority Debt (including Receivables Facility Attributed Indebtedness) does not exceed 25% of Maximum Permitted Total Debt.
(b) The Company will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, value and except as provided in Section 10.8(a)(iii) and Section 10.8(c10.5 (a)(3)); provided that the foregoing restrictions do not apply to:
(1) (i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or another Subsidiary or by the Company to a Restricted Wholly-Owned Subsidiary or (ii) the sale, lease, transfer or other than Brokers)disposition of assets (valued at net book value) of the Company to another Subsidiary not to exceed in any 12-month period 10% of Consolidated Total Assets as of the last day of the fiscal quarter immediately preceding such sale, lease, transfer or other disposition; or
(ii2) the sale or other disposition of assets as part of any Permitted Receivables Transaction so long as the aggregate amount of Priority Debt (including Receivables Facility Attributed Indebtedness) does not exceed 25% of Maximum Permitted Total Debt; or
(3) the sale of inventory in the ordinary course of business; or
(4) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1i) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs immediately preceding 36 calendar month period (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)business), exceed 1530% of the average of Consolidated Total AssetsAssets as of the last day of each of the 12 consecutive fiscal quarters then most recently ended;
(2ii) in the opinion of the Company's Board of DirectorsDirectors of the Company, the sale is for fair value and is in the best interests of the CompanyCompany and its Subsidiaries; and
(3iii) immediately after the consummation of the transaction and after giving effect thereto thereto, no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) within 12 months before or 12 months after the effective date of such asset disposition to the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in Section 10.8 and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) within 180 days after the effective date of such asset disposition to the prepayment at any applicable prepayment premium, premium of all Senior Debt of the Company on a pro rata basis, of basis (other than (x) Senior Funded Debt of owing to the Company, provided that any of its Subsidiaries or any Affiliate and (y) Senior Debt in respect of any revolving credit or similar facility providing the Company may prepay or any secured such Subsidiary with the right to obtain loans or other extensions of credit from time to time, unless in connection with such payment of Senior Funded Debt Debt, the availability of credit under such credit facility is permanently reduced by an amount not less than the Company amount of such proceeds applied to the payment of such Senior Debt), based upon principal amount then outstanding prior to unsecured Senior Funded Debt of the Companyoutstanding. It is understood and agreed by the Company that that, to the extent any such proceeds paid and are applied to the prepayment of the Notes, such prepayment will be made on a pro rata basis in respect of all Notes as hereinabove provided shall be prepaid as of all Series outstanding at such time in the manner and with the premium, if any, then required pursuant to the extent optional prepayment provisions provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Consolidated Subsidiary to, consolidate with or be a party to a merger with any other PersonPerson or dispose of all or a substantial part of the assets of the Company and its Consolidated Subsidiaries; provided that:
(1) any Consolidated Subsidiary may merge or consolidate with or into, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all a substantial part of its assets to, to the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as (A) (i) in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, and (3B) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement Agreement, to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such holders the Holder or Holders of 51% or more of the principal amount of the Notes at the time outstanding to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect theretothereto and to the incurrence of any Debt assumed or incurred in connection therewith, (x) the aggregate amount of outstanding Consolidated Debt and Priority Debt of the surviving corporation would be permitted by the terms of SS.5.8 as of the last day of the fiscal quarter immediately preceding the date of such consolidation or merger, and (y) no Default or Event of Default would exist; andand Allied Capital Corporation 2003 Note Agreement
(iii3) the Company may sell and any Consolidated Subsidiary may, sell, transfer or otherwise dispose of all or substantially all any part of its assets (other than as provided Investments in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value ordinary course of such assets (as determined business including, without limitation, in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existsecuritization transactions.
(b) The Company will notnot permit any Consolidated Subsidiary to issue any Voting Stock of such Consolidated Subsidiary except to satisfy the rights of minority shareholders to receive issuances of stock which are non-dilutive to the Company and/or any Consolidated Subsidiary; provided that the foregoing restrictions do not apply to issuances to the Company or to a Wholly-owned Subsidiary or the issuance of directors' qualifying shares.
(c) The Company will not sell, transfer or otherwise dispose of stock or Debt of any Consolidated Subsidiary (except issuance of directors' qualifying shares and sales, transfers and dispositions of all the stock of a special purpose Consolidated Subsidiary for consideration if (x) substantially all the assets of such Consolidated Subsidiary constitute Investments and (y) the sale, transfer or disposition of all such Investments for substantially the same consideration would be permitted by SS.5.11(a)(3)) and will not permit any Restricted Consolidated Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets stock (otherwise than by purchase or redemption of preferred stock) of a Consolidated Subsidiary or Debt of any other Consolidated Subsidiary (except (x) Excluded Assets and (y) assets sold in issuances to the ordinary course Company or to a Wholly-owned Subsidiary or issuance of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)directors' qualifying shares); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) all shares of stock and all Debt of such assets (valued at net book value) do not, together with all other assets of Consolidated Subsidiary held by the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assetsshall be sold simultaneously;
(2) in the opinion of the Company's Board of Directors, the :
(i) such sale is for fair value and of stock or Debt is in the best interests of the Company; and
(ii) the consideration paid for such stock and Debt is deemed adequate and satisfactory.
(3) immediately after the consummation Consolidated Subsidiary being disposed of shall not have any continuing investment in the Company or any Consolidated Subsidiary that is not being disposed of simultaneously; and
(4) such sale or disposition does not involve a substantial part of assets of the transaction Company and after giving effect thereto no Default its Consolidated Subsidiaries. As used in this SS.5.11, a sale of assets will be deemed a "substantial part" of the assets of the Company and its Consolidated Subsidiaries if (i) the Book Value of such assets sold in a given fiscal year (except those sold in the ordinary course of business) exceeds 15% of the Consolidated Total Assets of the Company and its Consolidated Subsidiaries determined at the close of the immediately preceding fiscal year, or Event (ii) the operations of Default would existsuch assets sold (except those sold in the ordinary course of business) generated 15% or more of the consolidated operating profit of the Company and its Consolidated Subsidiaries during the immediately Allied Capital Corporation 2003 Note Agreement preceding fiscal year; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets if a portion of the proceeds of which were such assets equal to the aggregate Book Value thereof immediately prior to such sale was or are is applied within twelve months after 365 days of the date of sale of such assets to either (A) the acquisition of assets Investments useful and intended to be used in the operation of the business of the Company and its Restricted Consolidated Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that the Book Value of the assets so disposed of of, or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionSS.2.2.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Samples: Note Agreement (Allied Capital Corp)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Consolidated Subsidiary to, consolidate with or be a party to a merger with any other PersonPerson or dispose of all or a substantial part of the assets of the Company and its Consolidated Subsidiaries; provided that:
(1) any Consolidated Subsidiary may merge or consolidate with or into, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all a substantial part of its assets to, to the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as (A) (i) in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, and (3B) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement Agreement, to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such the holder or holders of 51% or more of the principal amount of the Notes at the time outstanding to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect theretothereto and to the incurrence of any Debt assumed or incurred in connection therewith, (x) the aggregate amount of outstanding Consolidated Debt and Priority Debt of the surviving corporation would be permitted by the terms of SECTION 5.8 as of the last day of the fiscal quarter immediately preceding the date of such consolidation or merger, and (y) no Default or Event of Default would exist; and
(iii3) the Company may sell and any Consolidated Subsidiary may, sell, transfer or otherwise dispose of all or substantially all any part of its assets (other than as provided Investments in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value ordinary course of such assets (as determined business including, without limitation, in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existsecuritization transactions.
(b) The Company will notnot permit any Consolidated Subsidiary to issue any Voting Stock of such Consolidated Subsidiary except to satisfy the rights of minority shareholders to receive issuances of stock which are non-dilutive to the Company and/or any Consolidated Subsidiary; provided that the foregoing restrictions do not apply to issuances to the Company or to a Wholly-owned Subsidiary or the issuance of directors' qualifying shares. Allied Capital Corporation Note Agreement
(c) The Company will not sell, transfer or otherwise dispose of stock or Debt of any Consolidated Subsidiary (except issuance of directors' qualifying shares and sales, transfers and dispositions of all the stock of a special purpose Consolidated Subsidiary for consideration if (x) substantially all the assets of such Consolidated Subsidiary constitute Investments and (y) the sale, transfer or disposition of all such Investments for substantially the same consideration would be permitted by SECTION 5.11(a)(3)) and will not permit any Restricted Consolidated Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets stock (otherwise than by purchase or redemption of preferred stock) of a Consolidated Subsidiary or Debt of any other Consolidated Subsidiary (except (x) Excluded Assets and (y) assets sold in issuances to the ordinary course Company or to a Wholly-owned Subsidiary or issuance of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)directors' qualifying shares); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) all shares of stock and all Debt of such assets (valued at net book value) do not, together with all other assets of Consolidated Subsidiary held by the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assetsshall be sold simultaneously;
(2) in the opinion of the Company's Board of Directors, the :
(i) such sale is for fair value and of stock or Debt is in the best interests of the Company; and
(ii) the consideration paid for such stock and Debt is deemed adequate and satisfactory.
(3) immediately after the consummation Consolidated Subsidiary being disposed of shall not have any continuing investment in the Company or any Consolidated Subsidiary that is not being disposed of simultaneously; and
(4) such sale or disposition does not involve a substantial part of assets of the transaction Company and after giving effect thereto no Default its Consolidated Subsidiaries. As used in this SECTION 5.11, a sale of assets will be deemed a "substantial part" of the assets of the Company and its Consolidated Subsidiaries if (i) the Book Value of such assets sold in a given fiscal year (except those sold in the ordinary course of business) exceeds 15% of the Consolidated Total Assets of the Company and its Consolidated Subsidiaries determined at the close of the immediately preceding fiscal year, or Event (ii) the operations of Default would existsuch assets sold (except those sold in the ordinary course of business) generated 15% or more of the consolidated operating profit of the Company and its Consolidated Subsidiaries during the immediately preceding fiscal year; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets if a portion of the proceeds of which were such assets equal to the aggregate Book Value thereof immediately prior to such sale was or are is applied within twelve months after 365 days of the date of sale of such assets to either (A) the acquisition of assets Investments useful and intended to be used in the operation of the business of the Company and its Restricted Consolidated Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that the Book Value of the assets so disposed of of, or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the Allied Capital Corporation Note Agreement prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionSECTION 2.2.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Samples: Note Agreement (Allied Capital Corp)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Consolidated Subsidiary to, consolidate with or be a party to a merger with any other PersonPerson or dispose of all or a substantial part of the assets of the Company and its Consolidated Subsidiaries; provided that:
(1) any Consolidated Subsidiary may merge or consolidate with or into, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all a substantial part of its assets to, to the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as (A) (i) in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2ii) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, and (3B) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporationSURVIVING CORPORATION") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in this Agreement the Transaction Documents, to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders Holders of the Notes an opinion of counsel reasonably satisfactory to such holders the Holder or Holders of 51% or more of the principal amount of the Notes at the time outstanding to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect theretothereto and to the incurrence of any Debt assumed or incurred in connection therewith, (x) the aggregate amount of outstanding Consolidated Debt and Priority Debt of the surviving corporation would be permitted by the terms of SECTION 5.9 as of the last day of the fiscal quarter immediately preceding the date of such consolidation or merger, and (y) no Default or Event of Default would exist; and
(iii3) the Company may sell and any Consolidated Subsidiary may, sell, transfer or otherwise dispose of all or substantially all any part of its assets (other than as provided Investments in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value ordinary course of such assets (as determined business including, without limitation, in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existsecuritization transactions.
(b) The Company will notnot permit any Consolidated Subsidiary to issue any Voting Stock of such Consolidated Subsidiary except to satisfy the rights of minority shareholders to receive issuances of stock which are non-dilutive to the Company and/or any Consolidated Subsidiary; provided that the foregoing restrictions do not apply to issuances to the Company or to a Wholly-owned Subsidiary or the issuance of directors' qualifying shares.
(c) The Company will not sell, transfer or otherwise dispose of stock or Debt of any Consolidated Subsidiary (except issuance of directors' qualifying shares and sales, transfers and dispositions of all the stock of a special purpose Consolidated Subsidiary for consideration if (x) substantially all the assets of such Consolidated Subsidiary constitute Investments and (y) the sale, transfer or disposition of all such Investments for substantially the same consideration would be permitted by Section 5.12(a)(3)) and will not permit any Restricted Consolidated Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets stock (otherwise than by purchase or redemption of preferred stock) of a Consolidated Subsidiary or Debt of any other Consolidated Subsidiary (except (x) Excluded Assets and (y) assets sold in issuances to the ordinary course Company or to a Wholly-owned Subsidiary or issuance of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)directors' qualifying shares); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) all shares of stock and all Debt of such assets (valued at net book value) do not, together with all other assets of Consolidated Subsidiary held by the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assetsshall be sold simultaneously;
(2) in the opinion of the Company's Board of Directors, the :
(i) such sale is for fair value and of stock or Debt is in the best interests of the Company; and
(ii) the consideration paid for such stock and Debt is deemed adequate and satisfactory.
(3) immediately after the consummation Consolidated Subsidiary being disposed of shall not have any continuing investment in the Company or any Consolidated Subsidiary that is not being disposed of simultaneously; and
(4) such sale or disposition does not involve a substantial part of assets of the transaction Company and after giving effect thereto no Default its Consolidated Subsidiaries. As used in this SECTION 5.12, a sale of assets will be deemed a "substantial part" of the assets of the Company and its Consolidated Subsidiaries if (i) the Book Value of such assets sold in a given fiscal year (except those sold in the ordinary course of business) exceeds 15% of the Consolidated Total Assets of the Company and its Consolidated Subsidiaries determined at the close of the immediately preceding fiscal year, or Event (ii) the operations of Default would existsuch assets sold (except those sold in the ordinary course of business) generated 15% or more of the consolidated operating profit of the Company and its Consolidated Subsidiaries during the immediately preceding fiscal year; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets if a portion of the proceeds of which were such assets equal to the aggregate Book Value thereof immediately prior to such sale was or are is applied within twelve months after 365 days of the date of sale of such assets to either (A) the acquisition of assets Investments useful and intended to be used in the operation of the business of the Company and its Restricted Consolidated Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that the Book Value of the assets so disposed of of, or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionSECTION 2.2.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Samples: Note Agreement (Allied Capital Corp)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, (i) consolidate with or be a party to a merger with any other Person, corporation or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this section 5.8) of the assets of the Company and its assetsRestricted Subsidiaries (other than sales in the ordinary course of business or sales of properties sold pursuant to any Condemnation); provided provided, however, that:
: (i1) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, ; (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) the Company may consolidate or merge with or into, or transfer and may sell all or substantially all of its assets in a single transaction to, any other corporation if (1i) the corporation which results from such consolidation consolidation, merger or merger sale (the "surviving corporationentity") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation entity and the surviving corporation entity shall furnish to the holders of the Notes an opinion of counsel reasonably satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation entity enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3iii) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation consolidation, merger or merger sale and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4A) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
exist and (iiiB) the Company surviving corporation would be permitted by the provisions of section 5.6(a)(3) to incur at least $1.00 of additional Funded Debt; (3) any Restricted Subsidiary may sell sell, lease or otherwise dispose of all or substantially all any substantial part of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existany Restricted Subsidiary.
(b) The Company will notnot permit any Restricted Subsidiary to issue any shares of stock of any class (including as "stock" for the purposes of this section 5.8, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) of such Restricted Subsidiary to any Person other than the Company or a Restricted Subsidiary, unless immediately after the consummation of such transaction and after giving effect thereto, such Restricted Subsidiary shall remain a Restricted Subsidiary of the Company.
(c) The Company will not sell, transfer or otherwise dispose of any shares of stock of any Restricted Subsidiary or any Indebtedness of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (Subsidiary) any shares of stock or any Indebtedness of any other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
Restricted Subsidiary, unless: (1) such assets (valued at net book value) do not, together with all other assets the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of stock and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and Indebtedness is in the best interests of the Company; and
(2) said shares of stock and Indebtedness are sold, transferred or otherwise disposed of to a Person, for cash or other property and on terms reasonably deemed by the Board of Directors to be adequate and satisfactory; (3) in the case of the sale, transfer, or disposition of all shares of stock and Indebtedness of a Restricted Subsidiary, such Restricted Subsidiary shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; (4) in the case of the sale, transfer, or disposition of less than all of the shares of stock of a Restricted Subsidiary, immediately after the consummation of the transaction and after giving effect thereto no Default thereto, such Restricted Subsidiary shall remain a Restricted Subsidiary of the Company; and (5) such sale or Event other disposition does not involve a substantial part (as hereinafter defined) of Default would exist; the consolidated assets of the Company and its Restricted Subsidiaries.
(d) As used in this section 5.8, a sale, lease or other disposition of assets shall be deemed to be a "substantial part" of the assets of the Company and its Restricted Subsidiaries if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of by the Company and its Restricted Subsidiaries (other than in the ordinary course of business including without limitation property sold pursuant to any Condemnation) during the immediately preceding 12 months, exceeds 10% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal year, provided, however, that for purposes of the foregoing calculation, there shall not be included any the book value attributable to assets the proceeds from the disposition of which were or are applied within twelve months after 180 days of the date of sale of such assets to either (A1) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in section 5.5 and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of of, or (B2) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that in the Company may prepay event the assets which are the subject of any secured Senior Funded Debt such sale or disposition are subject to the Lien of the Company then outstanding prior Mortgage Indenture, such proceeds shall be applied first to unsecured Senior Funded Debt the prepayment of the CompanyFirst Mortgage Bonds as and to the extent required by the terms of the Mortgage Indenture. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositionsection 2.2.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company Obligors will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary (other than the Company) may merge or consolidate with or into, or transfer all or substantially all of its assets to, the Company Holdings or any Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Companyan Obligor pursuant to this clause (i), the Company such Obligor shall be the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokersthe Company) (other than a merger or consolidation with the CompanyHoldings), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, provided that any decrease in the percentage of the Voting Stock of such Restricted Subsidiary beneficially owned, directly or indirectly, by Holdings shall be treated as a disposition of such Voting Stock by Holdings subject to the provisions of Section 10.6(b) hereof and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) any Restricted Subsidiary (other than the Company Company) may consolidate sell, lease or merge with or into, or transfer otherwise dispose of all or substantially all of its assets to, in compliance with the provisions of Section 10.6(b);
(iii) either Obligor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) if the Company such Obligor is not the surviving corporation, the due and punctual performance and observation of all of the covenants in this Agreement and the Notes to be performed or observed by the Company such Obligor are expressly assumed in writing by the surviving corporation (pursuant to such agreements and instruments as shall be satisfactory in form and substance to the Required Holders of the Notes), and the surviving corporation shall furnish to the holders of the Notes Required Holders an opinion of counsel satisfactory to such holders to the effect that the instrument agreements and instruments of assumption has have been duly authorized, executed and delivered and constitutes constitute the legal, valid and binding contract contracts and agreement agreements of the surviving corporation enforceable in accordance with its their respective terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iiiiv) the Company may Obligors may, collectively, sell or otherwise dispose of all or substantially all of its assets their assets, taken as a whole (other than as provided in this Section 10.8(a10.6(a) and Section 10.8(c10.6(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by a Senior Financial Officer of such Obligor or, to the extent the approval of the Board of Directors is required, the Board of Directors of the Company) such Obligor), at the time of such sale or other disposition if other
(1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual performance and observance of all of the covenants in this Agreement and the Notes to be performed or observed by the Company such Obligor are expressly assumed in writing by the acquiring corporation (pursuant to such agreements and instruments as shall be satisfactory in form and substance to the Required Holders of the Notes), and the acquiring corporation shall furnish to the holders of the Notes Required Holders an opinion of counsel satisfactory to such holders to the effect that the instrument agreements and instruments of assumption has have been duly authorized, executed and delivered and constitutes constitute the legal, valid and binding contract contracts and agreement agreements of such acquiring the surviving corporation enforceable in accordance with its their respective terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company Obligors will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market valueassets, and except as provided in Section 10.8(a)(iii) and Section 10.8(c))including, without limitation, any Restricted Subsidiary Stock of, or any Investment in, any Restricted Subsidiary; provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary (other than the Company) to the Company Holdings or a Restricted Subsidiary, provided that any sale, lease, transfer or other disposition of assets from a transferring Restricted Subsidiary (to another Restricted Subsidiary with a larger minority interest than the transferring Restricted Subsidiary shall be treated as a sale, lease, transfer or other than Brokers)disposition of assets by such transferring Restricted Subsidiary, to the extent that the minority interest of such other Restricted Subsidiary exceeds the minority interest of the transferring Restricted Subsidiary, subject to the provisions of Section 10.6(b)(v) hereof; or
(ii) the sale of assets in the ordinary course of business for fair market value; or
(including iii) the sale or other disposition of all or substantially all of the assets of the Obligors, taken as a whole, as provided in Section 10.6(a)(iv) hereof; or
(iv) the sale, transfer or other disposition of Restricted Subsidiary Stock disposed (1) to qualify directors, (2) to comply with local laws requiring multiple shareholders, or (3) in connection with a merger or consolidation permitted under Section 10.6(a)(i); or
(v) the sale of assets (including, without limitation, (A) a decrease in the percentage of Voting Stock of a Restricted Subsidiary (other than the Company) beneficially owned, directly or indirectly, by Holdings as a result of a merger or consolidation pursuant to Section 10.8(c10.6(a)(i) hereof, (B) a sale, lease or other disposition of all or substantially all of the assets of a Restricted Subsidiary (other than the Company) pursuant to Section 10.6(a)(ii), (C) any Restricted Subsidiary Stock of, or any Investment in, any Restricted Subsidiary pursuant to Section 10.6(b)(i) and (D) an increase in the minority interest in the stock and surplus of a Restricted Subsidiary as a result of the issuance of stock by such Restricted Subsidiary permitted under Section 10.6(c)) for cash or other property Cash Equivalents to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) the Disposition Value of such assets (valued at net book value) do does not, together with the Disposition Value of all other assets of the Company Holdings and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(iSections 10.6(b)(i) (subject to the proviso therein), 10.6(b)(ii), 10.6(b)(iii), 10.6(b)(iv) and 10.6(b)(vi)), exceed 15% of Consolidated Total Assets;
(2) in a Senior Financial Officer of Holdings, or (to the opinion extent the approval of the Company's Board of DirectorsDirectors is required) the Board of Directors of Holdings (as evidenced by a resolution thereof) shall have determined, that the sale proposed sale, lease, transfer or other disposition is for fair value and is in the best interests of Holdings and its Restricted Subsidiaries;
(3) if, after giving effect to such sale, transfer or other disposition of Restricted Subsidiary Stock of a Restricted Subsidiary, such Restricted Subsidiary shall no longer qualify to be a "Restricted Subsidiary" hereunder, simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary and all Investment in such Restricted Subsidiary at the Companytime owned by Holdings and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety and such Restricted Subsidiary shall not have any continuing Investment in Holdings or any other Restricted Subsidiary not being simultaneously disposed of;
(4) any Restricted Subsidiary Stock of and Investment in any Restricted Subsidiary that are sold, transferred or otherwise disposed of shall be sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by a Senior Financial Officer of Holdings or (to the extent the approval of the Board of Directors is required) the Board of Directors of Holdings to be adequate and satisfactory; and
(35) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the net proceeds of which were or are applied either (A) within twelve months after the date of sale of such assets assets, to either (A) the acquisition of assets of a similar character useful and intended to be used in the operation of the business of the Company Holdings and its Restricted Subsidiaries and having a fair market value and a capacity to contribute to Consolidated EBITDA (as determined in good faith by a Senior Financial Officer of Holdings or (to the extent the approval of the Board of Directors is required) the Board of Directors of the Company) Holdings), in each case, at least equal to that of the assets so disposed of or (B) immediately upon receipt, to the prepayment at prepayment, together with any applicable prepayment premium, on a pro rata basis, of the Notes and any other Consolidated Senior Funded Debt of the CompanyDebt, provided that the Company Obligors may prepay any secured Consolidated Senior Funded Debt of the Company then outstanding prior to unsecured Consolidated Senior Funded Debt of the CompanyDebt. It is understood and agreed by the Company Obligors that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iiivi) the sale, lease, transfer sale or other disposition transfer of assets or Subsidiary Stock of Brokers if all assets of the Trade Receivables to a Special Purpose Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i))one or more Qualifying Securitization Transactions, do to the extent that the aggregate amount outstanding under all financing facilities relating to such Qualifying Securitization Transactions shall not exceed 15% $75,000,000 at any time of Consolidated Total Assets after giving effect to such sale, lease, transfer or other dispositiondetermination.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company Obligors will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company an Obligor (except (i) to qualify directors directors, (ii) stock issued to comply with local laws requiring multiple shareholders, or (iiiii) in connection with an issuance of such stock whereby the Company Holdings maintains its same direct or indirect proportionate interest in such Restricted Subsidiary), unless
(i) such issuance is for cash consideration or Cash Equivalents and after giving effect to such issuance of such stock, such Restricted Subsidiary shall continue to be a "Restricted Subsidiary" hereunder;
(ii) a Senior Financial Officer of Holdings, or (to the extent the approval of the Board of Directors is required) the Board of Directors of Holdings (as evidenced by a resolution thereof) shall have determined that the proposed issuance of said stock is for fair value and is in the best interest of Holdings and its Restricted Subsidiaries;
(iii) said stock issued to a Person on terms reasonably deemed by such Senior Financial Officer of Holdings or (to the extent the approval of the Board of Directors is required) the Board of Directors of Holdings to be adequate and satisfactory; and
(iv) such issuance shall be treated as a disposition of assets by Holdings of a portion of such Restricted Subsidiary equal to the increase in the minority interests in the stock and surplus of such Restricted Subsidiary subject to the provisions of Section 10.6(b) hereof.
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Lincoln Electric Holdings Inc)
Mergers, Consolidations and Sales of Assets. (a) The Company Parent Guarantor will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, the Company or any Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporationcompany") is organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving company and the Parent Corporation shall have confirmed in writing the due and punctual performance and observation of all of its covenants in this Agreement and the surviving company shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving company and the Parent Corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and except that equitable remedies lie in the discretion of a court and may be unenforceable, (3) each Constituent Company Guarantor shall have confirmed in writing the due and punctual performance and observation of all of its covenants and agreements contained in the Constituent Company Guaranty to which it is a party, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving company could incur U.S. $1.00 of additional Debt pursuant to SECTION 10.3(a)(iii)(2);
(ii) the Company may sell or otherwise dispose of all or substantially all of its assets to any Person for consideration which represents the. fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring Person and the Parent Corporation shall have confirmed in writing the due and punctual performance and observation of all of its covenants in this Agreement and the acquiring Person shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and except that equitable remedies lie in the discretion of a court and may be unenforceable, (3) each Constituent Company Guarantor shall have confirmed in writing the due and punctual performance and observation of all of its covenants and agreements contained in the Constituent Company Guaranty to which it is a party, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring Person could incur U.S. $1.00 of additional Debt pursuant to SECTION 10.3(a)(iii)(2).
(b) any Subsidiary (other than the Company, provision for which is made in clause (a) of this SECTION 10.6) may (i) merge or consolidate with or into the Parent Corporation or any Wholly-owned Subsidiary so long as in (1) any merger or consolidation involving the Parent Corporation, the Parent Corporation shall be the surviving or continuing corporation and (2) in any merger or consolidation involving a Wholly-owned Subsidiary (and not the Parent Corporation or the Company), the Whollyowned Subsidiary shall be the surviving or continuing corporation, (ii) sell or otherwise dispose of all or substantially all of its assets if at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist, and (iii) merge or consolidate with or into any Person other than the Parent Corporation or any Wholly-owned Subsidiary if, at the time of such merger or consolidation, and immediately after giving effect thereto, no Default or Event of Default would exist;
(c) the Parent Corporation may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving parent corporation ") is organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia, (2) the due and punctual performance and observation of all of the covenants in this Agreement to be performed or observed by the Company Parent Corporation are expressly assumed in writing by the surviving parent corporation and the surviving parent corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general except that equitable principlesremedies lie in the discretion of a court and may be unenforceable, (3) the surviving corporation each Constituent Company Guarantor shall have delivered confirmed in writing the due and punctual performance and observation of all of its covenants and agreements contained in the Constituent Company Guaranty to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'xwhich it is a party, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (1) no Default or Event of Default would exist; andexist and (2) the acquiring Person could incur U.S. $1.00 of additional Debt pursuant to SECTION 10.3(a)(iii)(2);
(iiid) the Company Parent Corporation may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the CompanyParent Corporation) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company Parent Corporation are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general except that equitable principlesremedies lie in the discretion of a court and may be unenforceable, (3) the acquiring corporation each Constituent Company Guarantor shall have delivered confirmed in writing the due and punctual performance and observation of all of its covenants and agreements contained in the Constituent Company Guaranty to each holder of the Notes financial rating letters evidencing thatwhich it is a party, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, (1) no Default or Event of Default would exist.
(b) The Company will not, exist and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion acquiring Person could incur U.S. $1.00 of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded additional Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(iSECTION 103(a)(iii)(2)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Personcorporation, or sell, lease or otherwise dispose of all or substantially all of its assetsassets (except as provided in Section 5.10(b)); provided that:
(i1) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) if the Company is not due and punctual payment of the surviving corporationprincipal, Make-Whole Amount and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist; andexist and (B) the surviving corporation would be permitted by the provisions of Section 5.8(a)(3) to incur at least $1.00 of additional Funded Debt;
(iii3) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this stock and Debt of a Subsidiary, which may only be sold or otherwise disposed of pursuant to Section 10.8(a) and Section 10.8(c5.10(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company, a copy of which determination, certified by the Secretary or an Assistant Secretary of the Company, shall have been furnished to the holders of the Notes) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal, Make-Whole Amount and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4iii) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would existexist and (B) the acquiring corporation would be permitted by the provisions of Section 5.8(a)(3) to incur at least $1.00 of additional Funded Debt.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, value and except as provided in Section 10.8(a)(iii) and Section 10.8(c5.10(a)(3)); provided that the foregoing restrictions do not apply to:
(i1) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers)Wholly-owned Subsidiary; or
(ii2) the sale of such assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1i) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.to
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assetsassets (except as expressly permitted by Section 10.5(b)); provided that:
: (i) any i)any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2) in any merger or consolidation involving a Restricted Wholly-owned Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a Restricted the Wholly-owned Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
corporation; (ii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is a solvent corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would existexist and (B) the surviving corporation would be permitted by the provisions of Section 10.3(a)(iii)(1) to incur at least $1.00 of additional Indebtedness; and
(iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a solvent corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would existexist and (B) the acquiring corporation would be permitted by the provisions of Section 10.3(a)(iii)(1) to incur at least $1.00 of additional Indebtedness.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, value and except as provided in Section 10.8(a)(iii) and Section 10.8(c10.5(a)(iii)); provided that the foregoing restrictions do not apply to:
: (i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers)Wholly-owned Subsidiary; or
or (ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
: (1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs immediately preceding 12 calendar months (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)business), exceed 15% of Consolidated Total Assets;
, determined as of the end of the immediately preceding fiscal quarter; (2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
and (3) immediately after the consummation of the transaction and after giving effect thereto thereto, (A) no Default or Event of Default would exist, and (B) the Company would be permitted by the provisions of Section 10.3(a)(iii)(1) to incur at least $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after 180 days of the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in Section 9.6 and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt Indebtedness of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i1) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii2) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4iii) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and;
(iii3) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this stock and Indebtedness of a Subsidiary, which may only be sold or otherwise disposed of pursuant to Section 10.8(a) and Section 10.8(c6.10(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company, a copy of which determination, certified by the Secretary or an Assistant Secretary of the Company, shall have been furnished to the holders of the Notes) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4iii) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, value and except as provided in Section 10.8(a)(iii) and Section 10.8(c6.10(a)(3)); provided that the foregoing restrictions do not apply to:
(i1) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers)Wholly-owned Subsidiary; or
(ii2) the sale of the Flagx Xxxss Division Assets; or
(3) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1i) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which period from November 1, 1995 to and including the date of the sale of such sale occurs assets (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)business), exceed 1525% of Consolidated Total AssetsAssets determined as of the end of the immediately preceding fiscal year;
(2ii) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3iii) immediately after the consummation of the transaction and after giving effect thereto thereto, no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after of the date of sale of such assets to either (A) the acquisition of of, or Binding Commitment to acquire, fixed assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in Section 6.5 and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt Indebtedness of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii2.2. Computations pursuant to this Section 6.10(b) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than shall include dispositions made pursuant to Section 10.8(b)(i6.10(c) and computations pursuant to Section 6.10(c) shall include dispositions made pursuant to this Section 6.10(b)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiarynot, and will not permit any Restricted Subsidiary to to, sell, transfer pledge or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or including as "stock" for the purposes of this Section 6.10(c) any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) of a Subsidiary (said stock, options, warrants and other Securities herein called "Subsidiary Stock") or any Indebtedness of any Subsidiary, nor will any Subsidiary issue, sell, pledge or otherwise dispose of any shares of its own Subsidiary Stock, provided that the foregoing restrictions do not apply to:
(1) the issue of directors' qualifying shares; or
(2) the issue of Subsidiary Stock to the Company; or
(3) the sale or other disposition at any one time to a Person (other than directly or indirectly to an Affiliate) of the entire investment of the Company except and its other Subsidiaries in any Subsidiary if all of the following conditions are met:
(i) such assets (valued at net book value) of such Subsidiary do not, together with all other assets of the Company and its Subsidiaries previously disposed of during the period from November 1, 1995 to qualify directors or and including the date of the sale of such assets (other than in the ordinary course of business), exceed 25% of Consolidated Total Assets determined as of the end of the immediately preceding fiscal year;
(ii) in connection with an issuance the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company;
(iii) immediately after the consummation of the transaction and after giving effect thereto, such Subsidiary shall have no Indebtedness of or continuing investment in the capital stock of the Company or of any Subsidiary and any such Indebtedness or investment shall have been discharged or acquired, as the case may be, by the Company or a Subsidiary; and
(iv) immediately after the consummation of the transaction and after giving effect thereto, no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied, within twelve months of the date of sale of such stock whereby assets to either (A) the acquisition of, or Binding Commitment to acquire, fixed assets useful and intended to be used in the operation of the business of the Company maintains and its same proportionate interest Subsidiaries as described in Section 6.5 and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Company. It is understood and agreed by the Company that any such Restricted Subsidiaryproceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided Section 2.2. Computations pursuant to this Section 6.10(C) shall include dispositions made pursuant to Section 6.10(B) and computations pursuant to Section 6.10(B) shall include dispositions made pursuant to this Section 6.10(C).
Appears in 1 contract
Samples: Fourth Amendment and Limited Waiver (Amcast Industrial Corp)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(ia) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1i) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, (2ii) any merger or consolidation involving a Wholly-owned Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a the Wholly-owned Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation corporation, and (3iii) at any merger or consolidation involving a Subsidiary Guarantor (and not the time Company), the surviving or continuing corporation shall have affirmed in writing its obligations under the Subsidiary Guaranty, unless and to the extent any such merger or consolidation involving a Wholly-Owned Restricted Subsidiary is consummated within the limitations of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existSection 10.8(b);
(iib) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1i) the corporation which results from such consolidation or merger (the "“surviving corporation"”) is organized under the laws of any state of the United States or the District of Columbia or Canadaunder the laws of Canada or any province thereof, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) the surviving corporation each Subsidiary Guarantor shall have delivered affirmed in writing its obligations under the Subsidiary Guaranty to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'xwhich it is a party, and (4iv) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and;
(iiic) the Company may sell or otherwise dispose of all or substantially all of the assets of the Company and its assets Restricted Subsidiaries (other than as provided in this Section 10.8(a) and Section 10.8(c)10.8) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canadaunder the laws of Canada or any province thereof, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) the acquiring corporation each Subsidiary Guarantor shall have delivered affirmed in writing its obligations under the Subsidiary Guaranty to each holder of the Notes financial rating letters evidencing thatwhich it is a party, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4iv) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.”
(bSection 1.3. Section 11(d) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value Note Purchase Agreements shall be and is hereby amended in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets its entirety to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (read as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unlessfollows:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary toin a single transaction or series of related transactions, consolidate or merge with or be a party to a merger with into any other Person, or sell, lease assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of its assets; provided that:
the Company's assets (determined on a consolidated basis for the Company and the Restricted Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless: (i) any Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, the Company or any Restricted Subsidiary (other than Brokers) so long as in either (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation or (2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and the Restricted Subsidiaries substantially as an entirety (the "Surviving Entity") (x) shall be a corporation organized and validly existing under the laws of the United States or any merger State thereof or consolidation involving a Restricted Subsidiary the District of Columbia and (y) shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Securities and the performance of every covenant of the Securities, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed; (ii) immediately after giving effect to such transaction and the assumption contemplated by clause (i)(2)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, shall be able to incur at least $1.00 of additional Indebtedness (other than BrokersPermitted Indebtedness) pursuant to Section 4.03 hereof; (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokersiii) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger immediately before and immediately after giving effect theretoto such transaction and the assumption contemplated by clause (i)(2)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default would exist;
shall have occurred or be continuing; and (iiiv) the Company may consolidate or merge the Surviving Entity shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease, assignment, sale or intootherwise, in a single transaction or transfer series of transactions) of all or substantially all of its the properties or assets of one or more Restricted Subsidiaries, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) No Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Section 4.12 will, and the Company will not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other corporation if Guarantor unless: (1i) the corporation which results from entity formed by or surviving any such consolidation or merger (if other than the "surviving corporation"Guarantor) is a corporation organized and existing under the laws of any state of the United States or any State thereof or the District of Columbia or Canada, Columbia; (2ii) if the Company is not the surviving corporation, the due and punctual performance and observation of such entity assumes by supplemental indenture all of the covenants in obligations of the Guarantor under this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation Indenture, such Guarantor's Guarantee and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, Registration Rights Agreement; (3iii) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of to such consolidation or merger and immediately after giving effect theretotransaction, no Default or Event of Default would exist; and
(iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this Section 10.8(a) and Section 10.8(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or Canada, (2) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger occurred and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and continuing; (4) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3iv) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose transaction and the use of any Restricted Subsidiary Stock (except to qualify directors or in connection with net proceeds therefrom on a merger or consolidation permitted under Section 10.8(a)(i)pro forma basis, and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company could satisfy the provisions of clause (a)(ii) of this Section 5.01; and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(iiv) the Board of Directors of the Company shall have determineddelivered to the Trustee an Officers' Certificate and Opinion of Counsel, as evidenced by each stating that such consolidation or merger and, if a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt supplemental indenture is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) required in connection with an issuance such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiarytransaction have been satisfied.
Appears in 1 contract
Samples: Indenture (Vs Holdings Inc)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, consolidate with or be a party to a merger with any other Person, or sell, lease lease, convey or otherwise dispose of transfer all or substantially all of its assets; provided that:
(i) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, (2) any merger or consolidation involving a Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with the Company), a Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist;
(ii) the assets and the equity Securities of any Restricted Subsidiary may be sold, leased, conveyed or otherwise transferred within the limitations of Sections 10.7(b) or (c), as applicable;
(iii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation Person if (1) the corporation Person which results from such consolidation or merger (the "surviving corporation") is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would existexist and (B) the surviving corporation would be permitted by the provisions of Section 10.5(a)(iv) to incur at least $1.00 of additional Funded Debt; and
(iiiiv) the Company may sell sell, convey or otherwise dispose of transfer all or substantially all of its assets (other than as provided in this stock of a Restricted Subsidiary, which may only be sold or otherwise disposed of pursuant to Section 10.8(a) and Section 10.8(c10.7(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person (the "acquiring corporation") is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observance observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such the acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger acquisition and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4A) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would existexist and (B) the acquiring corporation would be permitted by the provisions of Section 10.5(a)(iv) to incur at least $1.00 of additional Funded Debt.
(b) The Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, sell, lease, transfer, abandon or otherwise dispose of convey assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c10.7(a)(iv)); provided that the foregoing restrictions do not apply to:
: (i) the sale, lease, transfer or other disposition conveyance of assets of a Restricted Subsidiary to the Company or a Wholly-owned Restricted Subsidiary (other than Brokers)Subsidiary; or
or (ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
Company or a Restricted Subsidiary, provided that (1) the same such assets (valued at net book value) do notare leased by the Company or a Restricted Subsidiary, together with all other assets in any such case as lessee, within 180 days of the date of acquisition or completion of construction of such assets by the Company or such Restricted Subsidiary (an "Exempted Sale and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)Leaseback Transaction"), exceed 15% of Consolidated Total Assets;
(2) in immediately after the opinion consummation of the Company's Board such sale and after giving effect thereto, no Default or Event of DirectorsDefault would exist, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction such sale and after giving effect thereto no Default or Event thereto, the Company would be permitted by the provisions of Default would exist; provided, however, that for purposes Section 10.5(a)(iv) to incur at least $1.00 of the foregoing calculation, there shall not be included any assets additional Funded Debt and (4) the proceeds of which were or are applied within twelve months after the 180 days of such date of sale of such assets consummation to either (A) the acquisition of fixed assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in Section 10.2 and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or and/or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt Indebtedness of the Company, provided that without regard to such requirement of application on a pro rata basis (y) in the event such assets were acquired by the Company or any Restricted Subsidiary with Indebtedness incurred under a revolving Credit Agreement, proceeds from the sale of all such assets so acquired, together with proceeds from the sale of assets within the limitations of Section 10.7(b)(iii) and (c) (iii), in an aggregate amount not exceeding $5,000,000 may prepay any secured Senior Funded Debt of be applied to the Company then outstanding prior to unsecured Senior Funded Debt repayment of the Company. It is understood 's obligations under a revolving Credit Agreement under which such Indebtedness was borrowed and agreed (z) in the event such assets were secured by a Lien against the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than the proceeds may be applied to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest repayment of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred 's or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.'s obligations in respect of the Indebtedness secured by such Lien; or
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company Subject to and except as permitted by Section 23.3 of the Note Purchase Agreement, the Guarantor will not, and will not permit any Restricted Subsidiary to, consolidate or amalgamate with or be a party to a merger with or wind-up into any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(ia) any Restricted Subsidiary may amalgamate, merge or consolidate with or into, or transfer all or substantially all of its assets towind-up into, the Company Guarantor or any Restricted Wholly-owned Subsidiary (other than Brokers) so long as in (1i) any merger amalgamation, merger, consolidation or consolidation wind-up involving the CompanyGuarantor, the Company Guarantor shall be the surviving or continuing corporationlegal entity and (ii) in any merger, (2) any merger amalgamation, wind-up, consolidation or consolidation wind-up involving a Wholly-owned Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with and not the CompanyGuarantor), a the Wholly-owned Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation Person, unless and (3) at to the time extent any such merger or consolidation involving a Wholly-owned Restricted Subsidiary is consummated within the limitations of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existSection 7.4;
(iib) the Company Guarantor may consolidate consolidate, merge, amalgamate or merge wind-up with or into, or transfer all or substantially all of its assets to, into any other corporation legal entity if (1i) the corporation legal entity which results from such consolidation or merger (the "“surviving corporation"Person”) is organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia or CanadaColumbia, (2ii) if the Company Guarantor is not the surviving corporationPerson, the due and punctual performance and observation of all of the covenants in this Agreement to be performed or observed by the Company Guarantor are expressly assumed in writing by the surviving corporation Person and the surviving corporation Person shall furnish to the holders of the Notes this Agreement an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation Person enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) the surviving corporation each Subsidiary Guarantor shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt affirmed in writing its obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, under its Subsidiary Guaranty and (4iv) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iiic) the Company Guarantor may sell or otherwise dispose of all or substantially all of its the assets of the Guarantor and the Restricted Subsidiaries (other than as provided in this Section 10.8(a) and Section 10.8(c)7.4) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the CompanyGuarantor) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation legal entity organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual performance and observance of all of the covenants in this Agreement to be performed or observed by the Company Guarantor are expressly assumed in writing by the acquiring corporation Person and the acquiring corporation Person shall furnish to the holders of the Notes this Agreement an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation Person enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) the acquiring corporation each Subsidiary Guarantor shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt affirmed in writing its obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x under its Subsidiary Guaranty and (4iv) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporation, corporation and (2) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a the Wholly-owned Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation and (3) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existcorporation;
(ii) the Company may consolidate or merge with or into, or transfer all or substantially all of its assets to, into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the surviving corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist; andexist and (B) the surviving corporation would be permitted by the provisions of Section 10.6(a) to incur at least $1.00 of additional Indebtedness;
(iii) the Company may sell or otherwise dispose of all or substantially all of its assets (other than as provided in this stock and Indebtedness of a Restricted Subsidiary, which may only be sold or otherwise disposed of pursuant to Section 10.8(a) and Section 10.8(c10.9(c)) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia or CanadaColumbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and (3) the acquiring corporation shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect thereto, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P and "Baa2" or better by Xxxxx'x and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would existexist and (B) the acquiring corporation would be permitted by the provisions of Section 10.6(a) to incur at least $1.00 of additional Indebtedness.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon as obsolete or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold sold, leased or otherwise disposed of in the ordinary course of business for fair market value, value and except as provided in Section 10.8(a)(iii10.9 (a)(iii) and Section 10.8(c)(c); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Wholly-owned Restricted Subsidiary (other than Brokers)Subsidiary; or
(ii) the sale sale, lease, transfer or other disposition of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of (i) the Company's Board of DirectorsDirectors of the Company if the fair market value of the assets exceeds $2,500,000 or (ii) otherwise a Responsible Officer, the sale is for fair value and is in the best interests of the Company; and;
(32) immediately after the consummation of the transaction and after giving effect thereto thereto, (A) no Default or Event of Default would existexist and (B) the Company would be permitted by the provisions of Section 10.6(a) to incur at least $1.00of additional Indebtedness; provided, however, that for purposes and
(3) the entirety of the foregoing calculation, there proceeds (net of expenses and taxes arising in connection therewith) ("Net Proceeds") from any such sale or other disposition shall not be included any assets the proceeds of which were or are applied within twelve months after 360 days of receipt thereof by the date of sale of such assets to Company or a Restricted Subsidiary either (A) to the acquisition (directly or through acquisition of a Restricted Subsidiary) of assets (other than cash, cash equivalents or Securities) useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in Section 9.6 and having a fair market value (as determined in good faith by (i) the Board of Directors of the CompanyCompany if the fair market value of the assets exceeds $2,500,000 or (ii) otherwise a Responsible Officer) at least equal to that of the assets so disposed of or (B) towards the offer of prepayment at any applicable prepayment premiumpremium of Senior Indebtedness of the Company owing to any Person other than a Restricted Subsidiary or Affiliate upon the terms and conditions hereinafter provided; provided, that if for any reason whatsoever the Company does not apply all of the Net Proceeds from any such sale in compliance with clause (A) or (B) of this Section 10.9(b)(ii)(3) within such 360 day period, then and in such event when the aggregate Net Proceeds from all sales or other dispositions not so applied exceed $5,000,000 in the aggregate (the "Asset Sale Prepayment Amount"), the Company shall, not less than 10 days nor more than 30 days following the date on which the aggregate Net Proceeds from all sales or other dispositions not so applied exceed the Asset Sale Prepayment Amount and to the extent provided in the foregoing proviso of this Section 10.9(b), offer pursuant to a written notice (the "Asset Disposition Prepayment Notice") to apply on a pro rata basisbasis the Asset Sale Prepayment Amount towards the prepayment of all outstanding Notes. Such Asset Disposition Prepayment Notice shall specify (y) a date (the "Asset Disposition Prepayment Date"), which shall be not less than 120 days nor more than 180 days following the date of Senior Funded Debt such Asset Disposition Prepayment Notice, on which the Company will apply such Asset Sale Prepayment Amount to the prepayment on a pro rata basis of all of the Companyoutstanding Notes held by any Person which accepts such offer of prepayment and (z) a date, provided that which shall be not more than 60 days nor less than 30 days prior to such Asset Disposition Prepayment Date, on which each holder of the Notes must accept or decline such offer of prepayment. On such Asset Disposition Prepayment Date, the Company may prepay any secured Senior Funded Debt shall apply the Asset Sale Prepayment Amount to the prepayment of the Company then outstanding prior Notes held by each holder thereof which has accepted such offer to unsecured Senior Funded Debt the prepayment of the CompanyNotes as and to the extent herein contemplated. It is understood and agreed by the Company and each holder of the Notes, by its acceptance thereof, that any such proceeds paid holder may decline any such offer of prepayment, that the failure of any such holder to accept or decline any such offer of prepayment shall be deemed to be a rejection by such holder to accept such prepayment and applied to that if any such offer is accepted, the Asset Sale Prepayment Amount so offered towards the prepayment of the Notes as hereinabove provided and accepted shall be prepaid as pursuant to Section 8.2 hereof, excepting only that such prepayment shall be at par and together with interest accrued on the amount to be so prepaid to the date of prepayment, but without premium or Make-Whole Amount. To the extent provided in Section 8.2; or
(iii) that any holder of the saleNotes declines such offer of prepayment, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed may use the remaining amount of during such declined Asset Sale Prepayment Amount for general corporate purposes, and the Fiscal Year in which such sale occurs (other than in the ordinary course amount of business, other than assets or Subsidiary Stock of Brokers and other than Asset Sale Prepayment Amount shall be reset at zero. Computations pursuant to this Section 10.9(b) shall include dispositions made pursuant to Section 10.8(b)(i10.9(c) and computations pursuant to Section 10.9(c) shall include dispositions made pursuant to this Section 10.9(b)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiarynot, and will not permit any Restricted Subsidiary to to, sell, transfer pledge or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer stock or other disposition shall be treated ownership interests (including as a disposition under and shall satisfy "stock" for the requirements purposes of this Section 10.8(b10.9(c) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into stock or other ownership interests) of a Restricted Subsidiary (said stock, options, warrants and other Securities herein called "Subsidiary Stock") or any Indebtedness of any Restricted Subsidiary, nor will any Restricted Subsidiary issue, sell, pledge or otherwise dispose of any shares of its own Subsidiary Stock, provided that the foregoing restrictions do not apply to:
(i) the issue of directors' qualifying shares or Regulatory Shares; or
(ii) the issue of Subsidiary Stock to the Company; or
(iii) the sale or transfer by the Company or a Restricted Subsidiary of any Subsidiary Stock to the Company or to a Wholly-owned Restricted Subsidiary; or
(iv) any other sale or other disposition at any one time to a Person (other than directly or indirectly to an Affiliate) of the entire Investment of the Company and its other Restricted Subsidiaries in any Restricted Subsidiary if all of the following conditions are met:
(1) in the opinion of (i) the Company's Board of Directors if the fair market value of the assets exceeds $2,500,000 or (ii) otherwise a Responsible Officer, the sale is for fair value and is in the best interests of the Company;
(2) immediately after the consummation of the transaction and after giving effect thereto, such stockRestricted Subsidiary shall have no Indebtedness of or continuing Investment in the capital stock of the Company or of any Restricted Subsidiary and any such Indebtedness or Investment shall have been discharged or acquired, as the case may be, by the Company or a Restricted Subsidiary; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist and (B) the Company would be permitted by the provisions of Section 10.6(a) to incur at least $1.00 of additional Indebtedness; and
(4) the entirety of the Net Proceeds from any such sale or other disposition shall be applied within 360 days of receipt thereof by the Company or a Restricted Subsidiary either (A) to the acquisition (directly or through acquisition of a Restricted Subsidiary) of assets (other than cash, cash equivalents or Securities) useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries as described in Section 9.6 and having a fair market value (as determined in good faith by (i) the Board of Directors of the Company if the fair market value of the assets exceeds $2,500,000 or (ii) otherwise a Responsible Officer) at least equal to that of the assets so disposed of or (B) towards the offer of prepayment at any applicable prepayment premium of Senior Indebtedness of the Company owing to any Person other than a Restricted Subsidiary or Affiliate upon the terms and conditions hereinafter provided; provided, that if for any reason whatsoever the Company except does not apply all of the Net Proceeds from any such sale in compliance with clause (iA) to qualify directors or (iiB) of this Section 10.9(c)(iv)(4) within such 360 day period, then and in connection with an issuance of such stock whereby event when the aggregate Net Proceeds from all sales or other dispositions not so applied exceed the Asset Sale Prepayment Amount, the Company maintains its same proportionate interest shall, not less than 10 days nor more than 30 days following the date on which the aggregate Net Proceeds from all sales or other dispositions not so applied exceed the Asset Sale Prepayment Amount and to the extent provided in such Restricted Subsidiary.the foregoing proviso of this Section 10.9(c), offer pursuant to an Asset Disposition Prepayment Notice to apply on a pro rata basis the Asset Sale Prepayment Amount towards the prepayment of all outstanding Notes. Such Asset Disposition Prepayment Notice shall specify
Appears in 1 contract
Samples: Note Purchase Agreement (Oceaneering International Inc)
Mergers, Consolidations and Sales of Assets. (a) The Company will not, and will not permit any Restricted Subsidiary to, consolidate or amalgamate with or be a party to a merger with or wind-up into any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that:
(ia) any Restricted Subsidiary may merge or consolidate with or into, or transfer all or substantially all of its assets to, into the Company or any Wholly-owned Restricted Subsidiary (other than Brokers) so long as in (1i) any merger or consolidation involving the Company, the Company shall be the surviving or continuing corporationcorporation and (ii) in any merger, (2) any merger amalgamation, wind-up or consolidation involving a Wholly-owned Restricted Subsidiary (other than Brokers) (other than a merger or consolidation with and not the Company), a the Wholly-owned Restricted Subsidiary (other than Brokers) shall be the surviving or continuing corporation Person, unless and (3) at to the time extent any such merger or consolidation involving a Wholly-owned Restricted Subsidiary is consummated within the limitations of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would existSection 10.7;
(iib) the Company may consolidate consolidate, merge, amalgamate or merge wind-up with or into, or transfer all or substantially all of its assets to, into any other corporation legal entity if (1i) the corporation legal entity which results from such consolidation or merger (the "“surviving corporation"Person”) is organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all of the Company is not the surviving corporationNotes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Company are expressly assumed in writing by the surviving corporation Person and the surviving corporation Person shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation Person enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) the surviving corporation Fund and each Subsidiary Guarantor shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect theretoaffirmed in writing their respective obligations under this Agreement, the rating of the long term unsecured debt obligations of the successor corporation shall be "BBB-" or better by S&P Subsidiary Guaranty and "Baa2" or better by Xxxxx'xeach Subordination Agreement, as applicable, and (4iv) at the time of such consolidation or merger and immediately after giving effect thereto, no Default or Event of Default would exist; and
(iiic) the Company may sell or otherwise dispose of all or substantially all of the assets of the Company and its assets Restricted Subsidiaries (other than as provided in this Section 10.8(a) and Section 10.8(c)10.7) to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Company) at the time of such sale or other disposition if (1i) the acquiring Person is a corporation legal entity organized under the laws of Canada or any province thereof or any state of the United States or the District of Columbia or CanadaColumbia, (2ii) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Company are expressly assumed in writing by the acquiring corporation Person and the acquiring corporation Person shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation Person enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, (3iii) the acquiring corporation Fund and each Subsidiary Guarantor shall have delivered to each holder of the Notes financial rating letters evidencing that, at the time of such consolidation or merger and immediately after giving effect theretoaffirmed in writing their respective obligations under this Agreement, the rating of the long term unsecured debt obligations of the acquiring corporation shall be "BBB-" or better by S&P Subsidiary Guaranty and "Baa2" or better by Xxxxx'x each Subordination Agreement, as applicable, and (4iv) at the time of such sale or disposition and immediately after giving effect thereto, no Default or Event of Default would exist.
(b) The Company will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except (x) Excluded Assets and (y) assets sold in the ordinary course of business for fair market value, and except as provided in Section 10.8(a)(iii) and Section 10.8(c)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Company or a Restricted Subsidiary (other than Brokers); or
(ii) the sale of assets (including Subsidiary Stock disposed of pursuant to Section 10.8(c)) for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Company and its Restricted Subsidiaries previously disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business and other than pursuant to Section 10.8(b)(i)), exceed 15% of Consolidated Total Assets;
(2) in the opinion of the Company's Board of Directors, the sale is for fair value and is in the best interests of the Company; and
(3) immediately after the consummation of the transaction and after giving effect thereto no Default or Event of Default would exist; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within twelve months after the date of sale of such assets to either (A) the acquisition of assets useful and intended to be used in the operation of the business of the Company and its Restricted Subsidiaries and having a fair market value (as determined in good faith by the Board of Directors of the Company) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Funded Debt of the Company, provided that the Company may prepay any secured Senior Funded Debt of the Company then outstanding prior to unsecured Senior Funded Debt of the Company. It is understood and agreed by the Company that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 8.2; or
(iii) the sale, lease, transfer or other disposition of assets or Subsidiary Stock of Brokers if all assets of the Company and its Restricted Subsidiaries disposed of during the Fiscal Year in which such sale occurs (other than in the ordinary course of business, other than assets or Subsidiary Stock of Brokers and other than pursuant to Section 10.8(b)(i)), do not exceed 15% of Consolidated Total Assets after giving effect to such sale, lease, transfer or other disposition.
(c) The Company will not sell, transfer or otherwise dispose of any Restricted Subsidiary Stock (except to qualify directors or in connection with a merger or consolidation permitted under Section 10.8(a)(i), and except for Excluded Assets and, to the extent permitted under Section 10.8(b)(iii), Subsidiary Stock of Brokers) or any Debt of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of any Restricted Subsidiary Stock or Debt of any Restricted Subsidiary (other than to the Company), unless:
(i) simultaneously with such sale, transfer or disposition, all shares of such Restricted Subsidiary Stock related to such Restricted Subsidiary being disposed of and all Debt of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of Restricted Subsidiary Stock and Debt is in the best interest of the Company;
(iii) said shares of Restricted Subsidiary Stock and Debt are sold, transferred or otherwise disposed of to a Person on terms reasonably deemed by the Board of Directors of the Company to be adequate and satisfactory;
(iv) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(v) such sale, transfer or other disposition shall be treated as a disposition under and shall satisfy the requirements of Section 10.8(b) hereof.
(d) The Company will not permit any Restricted Subsidiary to issue any of its own stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into such stock) to any Person other than the Company except (i) to qualify directors or (ii) in connection with an issuance of such stock whereby the Company maintains its same proportionate interest in such Restricted Subsidiary.
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