Mergers, Consolidations and Sales of Assets. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers or a Subsidiary Guarantor (provided that if such Subsidiary is a Subsidiary Guarantor, the transferee in such transaction shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02. (b) Engage in any Asset Sale unless if the assets sold, transferred or otherwise disposed of have a fair market value in excess of $1,000,000 (i) such Asset Sale is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of.
Appears in 3 contracts
Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.), Credit Agreement (Lindblad Expeditions Holdings, Inc.), Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Mergers, Consolidations and Sales of Assets. (a) Merge into The Parent will not, and will not permit any of its Restricted Subsidiaries to, (i) consolidate with or consolidate be a party to a merger with any other person, Person or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all a “substantial part” of the consolidated assets of the Parent and its Restricted Subsidiaries; provided, however, that:
(1) any Restricted Subsidiary of the Parent may merge or consolidate with or into or sell, lease or otherwise convey its assets to the Borrowers Parent or a any Restricted Subsidiary Guarantor of which the Parent directly or indirectly holds at least the same percentage equity ownership or is entitled through ownership of interests, contractually or otherwise, to at least the same economic interest; provided that in any such merger or consolidation involving the Borrower, the Borrower or the Parent shall be the surviving or continuing corporation;
(2) The Parent and its Subsidiaries may dissolve or liquidate any Restricted Subsidiary of the Parent (other than the Borrower) or of such Subsidiary so long as all the assets of such dissolved or liquidated Restricted Subsidiary (i) were Co-Investments all of which have been sold or (ii) are concurrently transferred to the Parent or any Restricted Subsidiary of which the Parent directly or indirectly holds at least the same percentage equity ownership or is entitled through ownership of interests, contractually or otherwise, to at least the same economic interest; provided that if any Guarantor (other than the Parent) is dissolved or liquidated all of such Guarantor’s assets shall be concurrently transferred to the Borrower or another Guarantor;
(3) The Parent or any Restricted Subsidiary is of the Parent may consolidate or merge with any other Person if the Borrower or such Restricted Subsidiary or, in the case of such a Subsidiary Guarantortransaction involving the Borrower, the transferee in Parent or the Borrower, is the surviving or continuing corporation and at the time of such transaction shall be a Borrower consolidation or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation and after giving effect thereto, no Default or amalgamation, Event of Default shall have occurred and be continuing;
(iv4) for the avoidance of doubt, the Borrowers The Parent and the Restricted its Subsidiaries may sell or otherwise dispose of assets any asset which, in transactions that do not constitute an Asset Sale the reasonable judgment of such Person, have become obsolete or are permitted pursuant to clause worn out;
(b5) below, (v) the Borrowers The Parent and the other Restricted its Subsidiaries may consummate sell Property to the Transactions extent permitted by Section 7.11 hereof;
(6) The Parent and its Subsidiaries may sell delinquent notes or accounts receivables in the Mergerordinary course of business for purposes of collection only (and not for the purpose of any bulk sale or securitization); and
(vi7) The Parent and its Subsidiaries may in a fair market value transaction, sell or otherwise dispose of any Restricted Subsidiary may mergedirect or indirect Co-Investment; As used in this Section 7.12(a), dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, lease, transfer or other disposition of assets that does during any fiscal year shall be deemed to be of a “substantial part” of the consolidated assets of the Parent and its Restricted Subsidiaries if the net book value of such assets, when added to the net book value of all other assets (not constitute an Asset Sale; including dispositions of stock in Subsidiaries permitted under Section 7.12(b) hereof) sold, leased, transferred or disposed of by the Parent and its Restricted Subsidiaries (A) during such fiscal year (other than inventory in the ordinary course of business) exceeds the greater of (i) $400,000,000 and (viiii) 10% of the Borrowers total assets of the Parent and any its Restricted Subsidiary may make dispositions permitted by Section 6.04Subsidiaries, this Section 6.05(adetermined on a consolidated basis as of the last day of the immediately preceding fiscal year and (B) from and Section 6.06 after the Effective Date, 30% of the total assets of the Parent and incur Liens permitted by Section 6.02its Restricted Subsidiaries, determined on a consolidated basis as of the last day of the immediately preceding fiscal year.
(b) Engage Except with respect to the syndication or other disposition of Subsidiaries or interests in any Asset Sale unless if Subsidiaries through which direct or indirect Co-Investments, are made, the assets soldParent will not sell, transferred transfer or otherwise disposed dispose of, or permit any Restricted Subsidiary to issue, sell, transfer or otherwise dispose of, any shares of have a fair market value in excess stock of $1,000,000 any class (iincluding as “stock” for purposes of this Section 7.12, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) such Asset Sale is for consideration of any Subsidiary, except to the Parent or any Restricted Subsidiary of which the Parent directly or indirectly holds at least 75% the same percentage equity ownership or is entitled through ownership of which is cash interests, contractually or Cash Equivalents or Designated Non-Cash Consideration otherwise, to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value same economic interest and except for the purpose of the assets being sold, transferred, leased or disposed ofqualifying directors.
Appears in 3 contracts
Samples: Multicurrency Credit Agreement, Multicurrency Credit Agreement (Jones Lang Lasalle Inc), Credit Agreement (Jones Lang Lasalle Inc)
Mergers, Consolidations and Sales of Assets. (a) Merge into The Parent will not, and will not permit any of its Restricted Subsidiaries to, (i) consolidate with or consolidate be a party to a merger with any other person, Person or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all a "substantial part" of the consolidated assets of the Parent and its Restricted Subsidiaries; PROVIDED, HOWEVER, that:
(1) any Restricted Subsidiary of the Parent may merge or consolidate with or into or sell, lease or otherwise convey its assets to the Borrowers Parent or a any Restricted Subsidiary of which the Parent directly or indirectly holds at least the same percentage equity ownership or is entitled through ownership of interests, contractually or otherwise, to at least the same economic interest; PROVIDED THAT in any such merger or consolidation involving the Borrower, the Borrower or the Parent shall be the surviving or continuing corporation;
(2) The Parent and its Subsidiaries may dissolve or liquidate any Restricted Subsidiary of the Parent (other than the Borrower) or of such Subsidiary so long as all the assets of such dissolved or liquidated Restricted Subsidiary (i) were either investments in real estate, or real estate related assets, including notes and other securities all of which have been sold or (ii) are concurrently transferred to the Parent or any Restricted Subsidiary of which the Parent directly or indirectly holds at least the same percentage equity ownership or is entitled through ownership of interests, contractually or otherwise, to at least the same economic interest; PROVIDED THAT if any Guarantor (provided that other than the Parent) is dissolved or liquidated all of such Guarantor's assets shall be concurrently transferred to the Borrower or another Guarantor;
(3) The Parent or any Restricted Subsidiary of the Parent may consolidate or merge with any other Person if the Borrower or such Restricted Subsidiary is or, in the case of such a Subsidiary Guarantortransaction involving the Borrower, the transferee in Parent or the Borrower is the surviving or continuing corporation and at the time of such transaction shall be a Borrower consolidation or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation and after giving effect thereto, no Default or amalgamation, Event of Default shall have occurred and be continuing;
(iv4) for the avoidance of doubt, the Borrowers The Parent and the Restricted its Subsidiaries may sell or otherwise dispose of assets any asset which, in transactions that do not constitute an Asset Sale the reasonable judgment of such Person, have become obsolete or are permitted pursuant to clause worn out;
(b5) below, (v) the Borrowers The Parent and the other Restricted its Subsidiaries may consummate sell Property to the Transactions extent permitted by Section 7.11;
(6) The Parent and its Subsidiaries may sell delinquent notes or accounts receivables in the Mergerordinary course of business for purposes of collection only (and not for the purpose of any bulk sale or securitization); and
(vi7) The Parent and its Subsidiaries may in a fair market value transaction, sell or otherwise dispose of any Restricted Subsidiary may mergedirect or indirect Investment in real estate or real estate related assets, dissolveincluding notes and other securities; As used in this Section 7.12(a), liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, lease, transfer or other disposition of assets that does during any fiscal year shall be deemed to be of a "substantial part" of the consolidated assets of the Parent and its Restricted Subsidiaries if the net book value of such assets, when added to the net book value of all other assets (not constitute an Asset Sale; including dispositions of stock in Subsidiaries permitted under Section 7.12(b) hereof) sold, leased, transferred or disposed of by the Parent and its Restricted Subsidiaries during such fiscal year (viiother than inventory in the ordinary course of business) exceeds 5% of the Borrowers total assets of the Parent and any its Restricted Subsidiary may make dispositions permitted by Section 6.04Subsidiaries, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02determined on a consolidated basis as of the last day of the immediately preceding fiscal year.
(b) Engage Except with respect to the syndication or other disposition of Subsidiaries or interests in any Asset Sale unless if Subsidiaries through which direct or indirect Investments in real estate or real estate related assets, including notes and other securities, are made, the assets soldParent will not sell, transferred transfer or otherwise disposed dispose of, or permit any Restricted Subsidiary to issue, sell, transfer or otherwise dispose of, any shares of have a fair market value in excess stock of $1,000,000 any class (iincluding as "stock" for purposes of this Section, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) such Asset Sale is for consideration of any Subsidiary, except to the Parent or any Restricted Subsidiary of which the Parent directly or indirectly holds at least 75% the same percentage equity ownership or is entitled through ownership of which is cash interests, contractually or Cash Equivalents or Designated Non-Cash Consideration otherwise, to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value same economic interest and except for the purpose of the assets being sold, transferred, leased or disposed ofqualifying directors.
Appears in 3 contracts
Samples: Multicurrency Credit Agreement (Jones Lang Lasalle Inc), Multicurrency Credit Agreement (Jones Lang Lasalle Inc), Credit Agreement (Jones Lang Lasalle Inc)
Mergers, Consolidations and Sales of Assets. (a) Merge into into, amalgamate or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of Holdings and the BorrowersSubsidiaries, taken as a whole, except that (i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business[reserved], (ii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing (wA) any wholly owned Subsidiary Person may liquidate or dissolve or merge into, amalgamate with or consolidate into either of the Borrowers with any Borrower in a transaction in which either of the Borrowers such Borrower is the surviving corporation, (xB) any wholly owned Subsidiary Person may mergemerge into, liquidate, dissolve into amalgamate with or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (yC) any Subsidiary (other than any Principal Borrower) may merge into, amalgamate with or consolidate with any other Person in order to effect a Permitted Acquisition or other acquisition permitted by Section 6.04 and (D) any Subsidiary (other than any Principal Borrower) may liquidate or dissolve or, solely for purposes of reincorporating in a different jurisdiction, merge, amalgamate or consolidate if such transaction is not adverse to the U.S. Borrower Lenders in any material respect and if Holdings determines in good faith that such liquidation or dissolution dissolution, merger, amalgamation or consolidation is in the best interests interest of Holdings and the Borrowers Subsidiaries, taken as a whole and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers or a Subsidiary Guarantor (provided that if such Subsidiary is a Subsidiary Guarantor, the transferee in such transaction shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation Asset Sale (other than one in which Holdings or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell a Principal Borrower is sold or otherwise dispose of assets in transactions disposed of) that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate complies with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02shall be permitted.
(b) Engage in Make any Asset Sale unless if the assets sold, transferred or not otherwise disposed of have a fair market value in excess of $1,000,000 permitted under clause (i) or (ii) of paragraph (a) above (other than any Non-Consensual Asset Sale or any Specified Asset Sale, as to which this paragraph (b) shall not apply) unless such Asset Sale is for consideration at least 75% of which is cash and such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or Cash Equivalents or disposed of; provided that (i) any Designated Non-Cash Consideration to the extent that in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received that is at such that time does outstanding, not exceed in excess of an amount equal to the greater of $5,000,000 275 million and 1.50% of Consolidated Total Assets (calculated on a pro forma basis and with reference to the most recent consolidated balance sheet of Holdings) (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, (ii) any liabilities (other than liabilities that are by their terms subordinated to the Bank Obligations) shown on the most recent balance sheet of Holdings or any Subsidiary that are assumed by the transferee of any such assets, or that are otherwise cancelled or terminated in connection with the transaction with such transferee, (iii) any notes or other obligations or other securities or assets received by Holdings or any Subsidiary from the purchaser in respect of such Asset Sale that are converted into cash within 180 days of receipt thereof (to the extent of the cash received) and (iiiv) Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such consideration is at least equal Asset Sale, to the fair market value extent that Holdings and each other Subsidiary are released from any guarantee of the assets being soldpayment of such Indebtedness in connection with such Asset Sale shall, transferredin each case, leased or disposed ofbe deemed to be cash.
Appears in 2 contracts
Samples: Credit Agreement (Pactiv Evergreen Inc.), Specified Refinancing Amendment, Incremental Amendment and Administrative Agency Transfer Agreement (Pactiv Evergreen Inc.)
Mergers, Consolidations and Sales of Assets. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the BorrowersBorrower or any Restricted Subsidiary. Except that, except that so long as at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (iA) for the avoidance of doubt, the Borrowers and any Wholly Owned Restricted Subsidiary may purchase inventory, equipment and other assets in merge into Parent or the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers Borrower in a transaction in which either of Parent or the Borrowers Borrower, as the case may be, is the surviving corporation, (xB) any wholly owned Wholly Owned Restricted Subsidiary may merge, liquidate, dissolve merge into or consolidate with any other wholly owned Wholly Owned Material Restricted Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Material Restricted Subsidiary (provided that if any party to any such transaction is a Loan Partyand no Person other than Parent, the surviving entity of such transaction shall be Borrower or a Loan Party)Wholly Owned Material Restricted Subsidiary receives any consideration, (yC) any Restricted Subsidiary that is not a Wholly Owned Material Restricted Subsidiary may merge into or consolidate with any other Restricted Subsidiary that is not a Wholly Owned Material Restricted Subsidiary, (D) any Restricted Subsidiary may liquidate or dissolve or change its form of entity if the U.S. Borrower determines in good faith that such liquidation liquidation, dissolution or dissolution change is in the best interests of the Borrowers Borrower and is not materially disadvantageous to the Lenders Lenders, (E) any merger or consolidation may be consummated in connection with a Permitted Acquisition, provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving entity and (zii) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers or involving a Subsidiary Guarantor (provided that if such Subsidiary is a Subsidiary GuarantorWholly Owned Material Restricted Subsidiary, the transferee in such transaction surviving or resulting entity shall be a Borrower or Wholly Owned Material Restricted Subsidiary and (F) any other merger may be consummated in connection with a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or Disposition otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause ;
(b) below Make any Disposition (other than a Disposition permitted by Section 6.05(a) or a saleRestricted Payment permitted by Section 6.06(a)), transfer or other disposition except:
(i) Dispositions of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions investments permitted by Section 6.04, this ;
(ii) Investments permitted by Section 6.05(a) 6.04 and Section 6.06 and incur Liens permitted by Section 6.02.;
(biii) Engage Dispositions of damaged, obsolete or worn out property, or property no longer used or usable in any Asset Sale unless if the assets soldbusiness, transferred whether now owned or otherwise disposed hereafter acquired, in the ordinary course of have a fair market value business;
(iv) Dispositions of inventory, cash and Permitted Investments in excess the ordinary course of $1,000,000 business;
(v) licensing, sublicensing, abandonment or other Dispositions of intellectual property rights in the ordinary course of business;
(vi) Dispositions of equipment or real property to the extent that (i) such Asset Sale property is exchanged for consideration credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(vii) the sale or other transfer of products (including but not limited to Hydrocarbons), services or accounts receivable in the ordinary course of business;
(viii) Dispositions of property (other than (x) cash or Permitted Investments (unless such Disposition also constitutes an investment permitted by Section 6.04 or a Restricted Payment permitted by Section 6.06) or (y) Equity Interests of the Borrower) among the Borrower and any other Loan Party;
(ix) leases and subleases of property and real property, and licenses and sublicenses thereof in each case, in the ordinary course of business;
(x) to the extent constituting a Disposition, the termination or unwinding of Hedging Agreements;
(xi) Dispositions of Equity Interests in non-Loan Parties;
(xii) Dispositions by the Borrower and any Restricted Subsidiary not otherwise permitted under this Section 6.05; provided that (1) at least the time of such Disposition, no Default or Event of Default shall exist or would result from such Disposition, (2) Casualty Event Receipts related to such Disposition are applied in accordance with the requirements of Section 2.12 (if applicable), (3) in the case of any Disposition to Parent or any Loan Party, any Lien created under the Loan Documents in such property or asset shall not be released, (4) no less than 75% of which the consideration received for such Disposition shall be paid in cash; provided that for purposes of this clause (4), the amount of any Indebtedness of a Subsidiary of the Borrower that is cash not a Loan Party (as shown on the Borrower’s or Cash Equivalents such Subsidiary’s most recent balance sheet or Designated Non-Cash Consideration in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (5) the aggregate proceeds from any Disposition, when aggregated with the proceeds of all other Dispositions made pursuant to this paragraph (b)(xii) in any fiscal year, shall not exceed (A) the greater of $10,000,000 and an amount equal to 5.00% of Consolidated Total Assets plus (B) an additional amount equal to the extent portion of any amount available pursuant to this paragraph (b)(xii) but not utilized in any immediately preceding fiscal year; provided that all Designated Non-Cash Consideration at such time does any utilization of the amounts set forth in this clause (4) shall reduce, first, subclause (A) hereof and, second, subclause (B) hereof and (5) any Disposition pursuant to this paragraph (b)(xii) shall be for fair market value.
(c) In the case of any Wholly Owned Restricted Subsidiary, make an Equity Issuance to any Person that is not exceed $5,000,000 a Loan Party unless (with i) the fair market value of each item all such Equity Issuances in the aggregate for all such Restricted Subsidiaries for any fiscal year does not exceed the amount of Designated Non-Cash Consideration being measured at the time received and without giving effect Dispositions permitted pursuant to subsequent changes in valueSection 6.05(b)(xii) and taken together with all Dispositions made under such section or (ii) such consideration issuance is at least equal to the fair market value of the assets being sold, transferred, leased or disposed ofmade in connection with an Investment permitted under Section 6.04.
Appears in 2 contracts
Samples: Credit Agreement (World Point Terminals, LP), Credit Agreement (World Point Terminals, LP)
Mergers, Consolidations and Sales of Assets. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, liquidate or dissolve, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the BorrowersBorrower and its Restricted Subsidiaries, taken as a whole, except that that:
(i) for if at the avoidance time thereof and immediately after giving effect thereto no Event of doubt, the Borrowers Default shall have occurred and be continuing (x) any Wholly Owned Subsidiary of Holdings that is a Restricted Subsidiary may purchase inventory, equipment and other assets in merge into the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers Borrower in a transaction in which either of the Borrowers such Borrower is the surviving corporation, corporation and (xy) any wholly owned Wholly Owned Subsidiary of Holdings that is a Restricted Subsidiary (other than the Borrower) may merge, liquidate, dissolve merge into or consolidate with any other wholly owned Wholly Owned Subsidiary of Holdings that is a Restricted Subsidiary in a transaction in which the surviving entity is a wholly owned Restricted Subsidiary and no person other than a Wholly Owned Subsidiary of Holdings that is a Restricted Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan PartyParty and no person other than a Loan Party shall receive any consideration), ;
(yii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous Borrower; provided that (x) the assets of such Restricted Subsidiary are transferred upon such liquidation to the Lenders Borrower or another Restricted Subsidiary and (zy) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers or a Subsidiary Guarantor (provided that if such Restricted Subsidiary is a Subsidiary Guarantor, the transferee in assets of such transaction shall be a Subsidiary Guarantor are transferred upon such liquidation to the Borrower or a another Subsidiary Guarantor), ;
(iii) the Borrowers Borrower may merge or consolidate with any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any State thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the Subsidiaries may make other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Investment permitted Liens as security for, the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided further that (x) no Event of Default exists after giving effect to such merger or consolidation, (y) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents and (z) the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by Section 6.04 any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by way of mergerregulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, consolidation or amalgamation, including the USA Patriot Act;
(iv) for the avoidance of doubt, the Borrowers Borrower and the Restricted its Subsidiaries may sell undertake or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, consummate any IPO Reorganization Transactions;
(v) any Person (other than Holdings or the Borrowers and Borrower) may merge into or consolidate with any Restricted Subsidiary (other than the other Borrower) in a transaction in which the surviving entity is a Restricted Subsidiaries may consummate the Transactions and the MergerSubsidiary and, if any party to such merger or consolidation is a Subsidiary Guarantor, is a Subsidiary Guarantor; and
(vi) any Restricted Subsidiary (other than the Borrower) may merge, dissolve, liquidate, amalgamate, merge into or consolidate with or into another any Person in order to (1) effect an Asset Sale permitted pursuant to clause Section 6.05(b) or (b2) below or a sale, transfer or other disposition of assets that does not constitute make an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions Investment permitted by pursuant to Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.026.04 .
(b) Engage Make any Asset Sale, except:
(i) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; and
(ii) other Asset Sales, provided that, with respect to any Asset Sale unless if pursuant to this clause (ii), (A) the assets sold, transferred or otherwise disposed of have a fair market value of the consideration in respect of such Asset Sale is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of, (B) in the case of an Asset Sale where the fair market value of the consideration in respect of such Asset Sale is in excess of the greater of (x) $1,000,000 5,000,000 and (iy) 5.5% of Consolidated EBITDA for the most recently ended Test Period, such Asset Sale is for consideration at least 75% of which is cash or Cash Equivalents or Equivalents; provided that for purposes of this clause (B), any Designated Non-Cash Consideration to received by the extent that Borrower or any other Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received that is at such that time does outstanding, not to exceed the greater of (1) $5,000,000 and (2) 5.5% of Consolidated EBITDA for the most recently ended Test Period (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash, (C) the Net Cash Proceeds of such Asset Sale are applied and/or reinvested in accordance with Section 2.13(b) and (iiD) no Event of Default has occurred and is continuing on the date on which the agreement governing such consideration Asset Sale is at least equal to the fair market value of the assets being sold, transferred, leased or disposed ofexecuted.
Appears in 2 contracts
Samples: Credit Agreement (AssetMark Financial Holdings, Inc.), Credit Agreement (AssetMark Financial Holdings, Inc.)
Mergers, Consolidations and Sales of Assets. (a) Merge into The Borrower will not, and will not permit any of its Restricted Subsidiaries to, (i) consolidate with or consolidate be a party to a merger with any other person, Person or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all a "substantial part" of the consolidated assets of the Borrower and its Restricted Subsidiaries; provided, however, that:
(1) any Restricted Subsidiary of the Borrower may merge or consolidate with or into or sell, lease or otherwise convey its assets to the Borrowers Borrower or a any Restricted Subsidiary Guarantor of which the Borrower directly or indirectly holds at least the same percentage equity ownership or is entitled through ownership of interests, contractually or otherwise, to at least the same economic interest; provided that in any such merger or consolidation involving the Borrower, the Borrower shall be the surviving or continuing corporation;
(2) The Borrower and its Subsidiaries may dissolve or liquidate any Restricted Subsidiary of the Borrower or of such Subsidiary so long as all the assets of such dissolved or liquidated Restricted Subsidiary are concurrently transferred to the Borrower or any Restricted Subsidiary of which the Borrower directly or indirectly holds at least the same percentage equity ownership or is entitled through ownership of interests, contractually or otherwise, to at least the same economic interest; provided that if any Guarantor is dissolved or liquidated all of such Guarantor's assets shall be concurrently transferred to the Borrower or another Guarantor;
(3) The Borrower or any Restricted Subsidiary is of the Borrower may consolidate or merge with any other Person if the Borrower or such Restricted Subsidiary or, in the case of such a Subsidiary Guarantortransaction involving the Borrower, the transferee in Borrower is the surviving or continuing corporation and at the time of such transaction shall be a Borrower consolidation or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation and after giving effect thereto, no Default or amalgamation, Event of Default shall have occurred and be continuing;
(iv4) for the avoidance of doubt, the Borrowers The Borrower and the Restricted its Subsidiaries may sell or otherwise dispose of assets any asset which, in transactions that do not constitute an Asset Sale the reasonable judgment of such Person, have become obsolete or are permitted pursuant to clause worn out; and
(b5) below, (v) the Borrowers The Borrower and the other Restricted its Subsidiaries may consummate the Transactions in a fair market value transaction, sell or otherwise dispose of any direct or indirect Investment in real estate or real estate related assets, including notes and the Merger; (vi) any Restricted Subsidiary may mergeother securities. As used in this Section 7.12(a), dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, lease, transfer or other disposition of assets that does during any fiscal year shall be deemed to be of a "substantial part" of the consolidated assets of the Borrower and its Restricted Subsidiaries if the net book value of such assets, when added to the net book value of all other assets (not constitute an Asset Sale; including dispositions of stock in Subsidiaries permitted under Section 7.12(b) hereof) sold, leased, transferred or disposed of by the Borrower and its Restricted Subsidiaries during such fiscal year (viiother than inventory in the ordinary course of business) exceeds 5% of the Borrowers total assets of the Borrower and any its Restricted Subsidiary may make dispositions permitted by Section 6.04Subsidiaries, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02determined on a consolidated basis as of the last day of the immediately preceding fiscal year.
(b) Engage Except with respect to the syndication or other disposition of Subsidiaries or interests in any Asset Sale unless if Subsidiaries through which direct or indirect Investments in real estate or real estate related assets, including notes and other securities, are made, the assets soldBorrower will not sell, transferred transfer or otherwise disposed dispose of, or permit any Restricted Subsidiary to issue, sell, transfer or otherwise dispose of, any shares of have a fair market value in excess stock of $1,000,000 any class (iincluding as "stock" for purposes of this Section, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) such Asset Sale is for consideration of any Subsidiary, except to the Borrower or any Restricted Subsidiary of which the Borrower directly or indirectly holds at least 75% the same percentage equity ownership or is entitled through ownership of which is cash interests, contractually or Cash Equivalents or Designated Non-Cash Consideration otherwise, to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value same economic interest and except for the purpose of the assets being sold, transferred, leased or disposed ofqualifying directors.
Appears in 2 contracts
Samples: Multicurrency Credit Agreement (Jones Lang Lasalle Inc), Multicurrency Credit Agreement (Lasalle Partners Inc)
Mergers, Consolidations and Sales of Assets. (a) Merge into The Borrower will not, and will not permit any of its Restricted Subsidiaries to, (i) consolidate with or consolidate be a party to a merger with any other person, Person or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all a "substantial part" of the consolidated assets of the Borrower and its Restricted Subsidiaries; provided, however, that:
(1) any Restricted Subsidiary of the Borrower may merge or consolidate with or into or sell, lease or otherwise convey its assets to the Borrowers Borrower or a any Restricted Subsidiary Guarantor of which the Borrower directly or indirectly holds at least the same percentage equity ownership or is entitled through ownership of interests, contractually or otherwise, to at least the same economic interest; provided that in any such merger or consolidation involving the Borrower, the Borrower shall be the surviving or continuing corporation;
(2) The Borrower and its Subsidiaries may dissolve or liquidate any Restricted Subsidiary of the Borrower or of such Subsidiary so long as all the assets of such dissolved or liquidated Restricted Subsidiary are concurrently transferred to the Borrower or any Restricted Subsidiary of which the Borrower directly or indirectly holds at least the same percentage equity ownership or is entitled through ownership of interests, contractually or otherwise, to at least the same economic interest; provided that if any Guarantor is dissolved or liquidated all of such Guarantor's assets shall be concurrently transferred to the Borrower or another Guarantor;
(3) The Borrower or any Restricted Subsidiary is of the Borrower may consolidate or merge with any other Person if the Borrower or such Restricted Subsidiary or, in the case of such a Subsidiary Guarantortransaction involving the Borrower, the transferee in Borrower is the surviving or continuing corporation and at the time of such transaction shall be a Borrower consolidation or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation and after giving effect thereto, no Default or amalgamation, Default shall have occurred and be continuing;
(iv4) for the avoidance of doubt, the Borrowers The Borrower and the Restricted its Subsidiaries may sell or otherwise dispose of assets any asset which, in transactions that do not constitute an Asset Sale the reasonable judgment of such Person, have become obsolete or are permitted pursuant to clause worn out; and
(b5) below, (v) the Borrowers The Borrower and the other Restricted its Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.
(b) Engage in any Asset Sale unless if the assets sold, transferred or otherwise disposed of have a fair market value transaction, sell or otherwise dispose of any direct or indirect Investment in excess real estate or real estate related assets, including notes and other securities. As used in this Section 6.12(a), a sale, lease, transfer or disposition of $1,000,000 assets during any fiscal year shall be deemed to be of a "substantial part" of the consolidated assets of the Borrower and its Restricted Subsidiaries if the net book value of such assets, when added to the net book value of all other assets (inot including dispositions of stock in Subsidiaries permitted under Section 6.12(b) hereof) sold, leased, transferred or disposed of by the Borrower and its Restricted Subsidiaries during such Asset Sale is for consideration at least 75fiscal year (other than inventory in the ordinary course of business) exceeds 5% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value total assets of the assets being sold, transferred, leased or disposed of.Borrower and its
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) Merge into The Borrower shall not, nor shall it permit any of its Subsidiaries to, consolidate with or consolidate be a party to a merger with any other person, or permit any other person to merge into or consolidate with itPerson, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned of its assets, or hereafter acquired) of the Borrowers, except that liquidate or dissolve; provided that:
(i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventorymerge or consolidate with or into the Borrower or any Wholly-owned Subsidiary so long as (A) in any merger or consolidation involving the Borrower, equipment the Borrower shall be the surviving or continuing Person and other assets (B) in any merger or consolidation involving a Wholly-owned Subsidiary (and not the ordinary course of businessBorrower), the Wholly-owned Subsidiary shall be the surviving or continuing Person;
(ii) (w) any wholly owned Subsidiary the Borrower may liquidate or dissolve consolidate or merge or consolidate into either of with any other Person if (A) the Borrowers in a transaction in which either of the Borrowers Borrower is the surviving corporationPerson in connection with such consolidation or merger and (B) at the time of such consolidation or merger and immediately after giving effect thereto, (x) no Default or Event of Default exists or would exist and (y) the Borrower would be permitted by the provisions of Section 6.2(d) to incur at least $1.00 of additional Debt;
(iii) any wholly owned Subsidiary may mergesell, liquidatelease or otherwise dispose of all or substantially all of its assets to the Borrower or any Guarantor and any Non-Guarantor Subsidiary may sell, dissolve into lease or consolidate with otherwise dispose of all or substantially all of its assets to any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary Non-Guarantor Subsidiary; and
(provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (yiv) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers Borrower and is not materially disadvantageous to the Lenders and Lenders.
(zb) The Borrower shall not, nor shall it permit any Subsidiary may of its Subsidiaries to, sell, lease, transfer, lease abandon as obsolete or otherwise dispose of all or substantially all of its assets to the Borrowers or a Subsidiary Guarantor (Properties; provided that if such Subsidiary is a Subsidiary Guarantor, the transferee foregoing restriction in such transaction shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause this paragraph (b) below, does not apply to:
(vi) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may mergesale, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a salelease, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) Properties to the Borrowers and any Restricted Borrower or a Wholly-owned Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.a Subsidiary of the Borrower;
(bii) Engage in any Asset Sale unless if the assets Properties sold, transferred leased or otherwise disposed of have a in the ordinary course of business for fair market value and Properties sold, leased or otherwise disposed as permitted under Sections 6.5(a) or (c); or
(iii) the sale, lease, transfer or other disposition of Properties for cash or other Property to a Person or Persons if (A) such sale, lease, transfer or other disposition is for fair market value and, in excess the opinion of a Responsible Officer of the Borrower, is in the best interests of the Borrower, and (B) immediately after the consummation of the transaction and after giving effect thereto, (x) no Default or Event of Default exists or would exist and (y) the Borrower would be permitted by the provisions of Section 6.2(d) to incur at least $1,000,000 1.00 of additional Debt.
(c) The Borrower shall not, nor shall it permit any of its Subsidiaries to, sell or otherwise dispose of any Equity Interests (including as “Equity Interests” for the purposes of this Section 6.5(c) any options or warrants to purchase Equity Interests or other Securities exchangeable for or convertible into Equity Interests) of a Subsidiary (said Equity Interests, options, warrants and other Securities herein called “Subsidiary Stock”), nor will any Subsidiary issue any shares of its own Subsidiary Stock, provided that the foregoing restrictions in this paragraph (c) do not apply to:
(i) the issuance of directors’ qualifying shares or Regulatory Shares;
(ii) the issuance of Subsidiary Stock to the Borrower;
(iii) the issuance, sale or transfer by the Borrower or any of its Subsidiaries of any Subsidiary Stock to the Borrower or to a Wholly-owned 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 any of the Equity Interests owned by the Borrower and its other Subsidiaries in any Subsidiary if (A) such Asset Sale sale or disposition is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value and, in the opinion of each item a Responsible Officer of Designated Non-Cash Consideration being measured at the time received Borrower, is in the best interests of the Borrower, (B) immediately after the consummation of the transaction and without after giving effect to subsequent changes thereto, such Subsidiary shall have no Debt of or continuing Investment in value) the Equity Interests of the Borrower or of any of its other Subsidiaries, and (iiC) such consideration is immediately after the consummation of the transaction and after giving effect thereto, (x) no Default or Event of Default exists or would exist and (y) the Borrower would be permitted by the provisions of Section 6.2(d) to incur at least equal to the fair market value $1.00 of the assets being sold, transferred, leased or disposed ofadditional Debt.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) Merge into The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, consolidate with or consolidate be a party to a merger with any other person, or permit any other person to merge into or consolidate with itPerson, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned of its assets, or hereafter acquired) of the Borrowers, except that liquidate or dissolve; provided that:
(i) for any Restricted Subsidiary may merge or consolidate with or into the avoidance of doubtBorrower or any Wholly-owned Restricted Subsidiary so long as (A) in any merger or consolidation involving the Borrower, the Borrowers Borrower shall be the surviving or continuing Person and (B) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary may purchase inventory(and not the Borrower), equipment and other assets in the ordinary course of business, Wholly-owned Restricted Subsidiary shall be the surviving or continuing Person;
(ii) (w) any wholly owned Subsidiary the Borrower may liquidate or dissolve consolidate or merge or consolidate into either of with any other Person if (A) the Borrowers in a transaction in which either of the Borrowers Borrower is the surviving corporationPerson in connection with such consolidation or merger and (B) at the time of such consolidation or merger and immediately after giving effect thereto, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into no Default or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity Event of such transaction shall be a Loan Party), Default exists or would exist and (y) the Borrower would be permitted by the provisions of Section 6.2(d) to incur at least $1.00 of additional Debt;
(iii) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Guarantor and any Non-Guarantor Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all of its assets to any other Non-Guarantor Restricted Subsidiary; and
(iv) any Restricted Subsidiary (other than a Material Domestic Subsidiary) may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers Borrower and is not materially disadvantageous to the Lenders and Lenders.
(zb) The Borrower shall not, nor shall it permit any Subsidiary may of its Restricted Subsidiaries to, sell, lease, transfer, lease abandon as obsolete or otherwise dispose of all or substantially all of its assets to the Borrowers or a Subsidiary Guarantor (Properties; provided that if such Subsidiary is a Subsidiary Guarantor, the transferee foregoing restriction in such transaction shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause this paragraph (b) below, does not apply to:
(vi) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may mergesale, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a salelease, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) Properties to the Borrowers and any Borrower or a Wholly-owned Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.a Restricted Subsidiary of the Borrower;
(bii) Engage in any Asset Sale unless if the assets Properties sold, transferred leased or otherwise disposed of have a in the ordinary course of business for fair market value and Properties sold, leased or otherwise disposed as permitted under Sections 6.5(a) or (c); or
(iii) the sale, lease, transfer or other disposition of Properties for cash or other Property to a Person or Persons if (A) such sale, lease, transfer or other disposition is for fair market value and, in excess the opinion of a Responsible Officer of the Borrower, is in the best interests of the Borrower, and (B) immediately after the consummation of the transaction and after giving effect thereto, (x) no Default or Event of Default exists or would exist and (y) the Borrower would be permitted by the provisions of Section 6.2(d) to incur at least $1,000,000 1.00 of additional Debt.
(c) The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, sell or otherwise dispose of any Equity Interests (including as “Equity Interests” for the purposes of this Section 6.5(c) any options or warrants to purchase Equity Interests or other Securities exchangeable for or convertible into Equity Interests) of a Restricted Subsidiary (said Equity Interests, options, warrants and other Securities herein called “Subsidiary Stock”), nor will any Restricted Subsidiary issue any shares of its own Subsidiary Stock, provided that the foregoing restrictions in this paragraph (c) do not apply to:
(i) the issuance of directors’ qualifying shares or Regulatory Shares;
(ii) the issuance of Subsidiary Stock to the Borrower;
(iii) the issuance, sale or transfer by the Borrower or any of its Restricted Subsidiaries of any Subsidiary Stock to the Borrower 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 any of the Equity Interests owned by the Borrower and its other Restricted Subsidiaries in any Restricted Subsidiary if (A) such Asset Sale sale or disposition is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value and, in the opinion of each item a Responsible Officer of Designated Non-Cash Consideration being measured at the time received Borrower, is in the best interests of the Borrower, (B) immediately after the consummation of the transaction and without after giving effect to subsequent changes thereto, such Restricted Subsidiary shall have no Debt of or continuing Investment in value) the Equity Interests of the Borrower or of any of its other Restricted Subsidiaries, and (iiC) such consideration is immediately after the consummation of the transaction and after giving effect thereto, (x) no Default or Event of Default exists or would exist and (y) the Borrower would be permitted by the provisions of Section 6.2(d) to incur at least equal to the fair market value $1.00 of the assets being sold, transferred, leased or disposed ofadditional Debt.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) Merge into The Company will not, and will not permit any Restricted Subsidiary to: (i) consolidate with or consolidate be a party to a merger with any other person, Person or permit any other person to merge into or consolidate with it, or sell(ii) license, transfer, lease sell or otherwise dispose of (in one transaction or in herein a series of transactions"Disposition") all or substantially all any substantial part of the assets (whether now owned or hereafter acquired) of the BorrowersCompany and its Restricted Subsidiaries, except that provided, however, that:
(i1) for any Restricted Subsidiary may merge or consolidate with or into the avoidance of doubtCompany, any Wholly-owned Restricted Subsidiary or any other Person so long as in any merger or consolidation involving the Company, the Borrowers Company shall be the surviving or continuing entity 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 Restricted Subsidiary may purchase inventory, equipment and other sell or otherwise dispose of all or any part of its assets to the Company or any Wholly-owned Restricted Subsidiary; and
(3) the Company or any Restricted Subsidiary may sell or otherwise dispose of any of its assets in the ordinary course of businessbusiness for fair value.
(b) The Company will not permit any Restricted Subsidiary to issue or sell any Equity Capital of such Restricted Subsidiary to any Person other than the Company or a Wholly-owned Restricted Subsidiary, except:
(ii1) for the purpose of qualifying directors or the equivalent thereof; or
(w2) in satisfaction of the validly pre-existing preemptive rights of minority shareholders or the equivalent thereof in connection with the simultaneous issuance of Equity Capital 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; or
(3) to Affiliated Entities in connection with the formation of a Restricted Subsidiary which is organized as an investment entity by the Company and such Affiliated Entities and the activities of which are limited solely to the ownership of Equipment.
(c) The Company will not sell, transfer or otherwise dispose of any Equity Capital in any Restricted Subsidiary (except to qualify directors or the equivalent thereof) or any 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 wholly Equity Capital or any Indebtedness of any other Restricted Subsidiary, unless:
(1) simultaneously with such sale, transfer, or disposition, all shares of Equity Capital and all Indebtedness of such Restricted Subsidiary at the time owned by the Company and by every other Subsidiary may liquidate shall be sold, transferred or dissolve or merge or consolidate into either disposed of as an entirety;
(2) the Manager shall have determined, as evidenced by a resolution of the Borrowers in a transaction in which either Board of Directors thereof, that the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity retention of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution Equity Capital and Indebtedness is no longer in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers or a Subsidiary Guarantor (provided that if such Subsidiary is a Subsidiary Guarantor, the transferee in such transaction shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.Company;
(b3) Engage in any Asset Sale unless if the assets such Equity Capital and Indebtedness is sold, transferred or otherwise disposed of to a Person, for a cash consideration and on terms reasonably deemed by the Manager to be adequate and satisfactory; and
(4) the Restricted Subsidiary being disposed of shall not have a fair market value any continuing investment in excess of $1,000,000 (i) such Asset Sale is for consideration at least 75% of which is cash the Company or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does any other Subsidiary not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or simultaneously disposed of.
Appears in 1 contract
Samples: Note Agreement (Professional Lease Management Income Fund I LLC)
Mergers, Consolidations and Sales of Assets. Sale and Lease-Back Transactions.
(a) Merge Neither Holdings nor the Borrower will, nor will Holdings cause or permit any of the Restricted Subsidiaries to merge into or consolidate with any other person, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the BorrowersBorrower, except that (i) for the avoidance of doubt, the Borrowers Borrower and any Restricted Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Restricted Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers Borrower in a transaction in which either of the Borrowers Borrower is the surviving corporation, (x) any wholly owned Restricted Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Restricted Subsidiary in a transaction in which the surviving entity is a wholly owned Restricted Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Restricted Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers Borrower and is not materially disadvantageous to the Lenders and (z) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers Borrower or a any other Restricted Subsidiary Guarantor (provided that if such transferor Restricted Subsidiary is a Subsidiary Guarantor, the transferee in such transaction shall be a the Borrower or a Subsidiary Guarantor), (iii) the Borrowers Borrower and the Restricted Subsidiaries may make any Investment permitted by Section 6.04 6.03 by way of merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers Borrower and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger[reserved]; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers Borrower and any Restricted Subsidiary may make dispositions permitted by Section 6.046.03, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.
(b) Engage in Holdings and the Borrower shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless if unless:
(i) Holdings, the Borrower or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets sold, transferred or Equity Interests issued or sold or otherwise disposed of have a fair market value in excess of $1,000,000 of;
(iii) such Asset Sale is for consideration at least 75% of the consideration for such Asset Sale, together with all other Asset Sales since the Closing Date (on a cumulative basis) is in the form of cash, Cash Equivalents, Replacement Assets or a combination thereof. For purposes of this clause (ii), each of the following will be deemed to be cash:
(A) any liabilities, as recorded on the balance sheet of the Holdings, the Borrower or any Restricted Subsidiary (other than contingent liabilities or liabilities that are by their terms subordinated to the Obligations), that are assumed by the transferee of any such assets and as a result of which is Holdings and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or are indemnified against further liabilities;
(B) any securities, notes or other obligations received by Holdings, the Borrower or any such Restricted Subsidiary from such transferee that are converted by Holdings, the Borrower or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of the Asset Sale, to the extent of the cash or Designated Non-Cash Consideration Equivalents received in that conversion;
(C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that Holdings and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(D) consideration consisting of Indebtedness of the Borrower or any Guarantor (other than Indebtedness subordinated to the Obligations) received from Persons who are not the Borrower or any Restricted Subsidiary; and
(E) consideration other than cash, Cash Equivalents or Replacement Assets received by Holdings, the Borrower or any Restricted Subsidiary in such Asset Sale with a Fair Market Value, taken together with all Designated Non-Cash Consideration other consideration received pursuant to this clause (E) that is at the time outstanding, not to exceed the greater of (i) $10,000,000 and (ii) 1.0% of Total Tangible Assets at the time of the receipt of such time does not exceed $5,000,000 (consideration, with the fair market value Fair Market Value of each item of Designated Non-Cash Consideration such consideration being measured at the time received and without giving effect to subsequent changes in value; and
(iii) and the net proceeds of such Asset Sale are applied in accordance with Section 4.09 (iiAsset Sales) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed ofIndenture.
Appears in 1 contract
Samples: Revolving Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Mergers, Consolidations and Sales of Assets. (a) Merge Merge, dissolve, liquidate, amalgamate into or consolidate with any other person, or permit make any other person Disposition (including, in each case, pursuant to merge into an LLC Division or consolidate with it, LP Division or sell, transfer, lease an allocation of assets to a Series LLC or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the BorrowersSeries LP), except that this Section 6.04 shall not prohibit:
(a) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) for the avoidance merger or consolidation of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in with or into the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers Borrower in a transaction in which either of the Borrowers Borrower is the surviving corporationsurvivor, (xii) the merger or consolidation of any wholly owned Subsidiary may merge, liquidate, dissolve with or into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a wholly owned Subsidiary Loan Party and, in the case of each of clauses (provided i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.03), (iii) the merger or consolidation of any Subsidiary that if is not a Subsidiary Loan Party with or into any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation liquidation, dissolution or dissolution change in form is in the best interests of the Borrowers Borrower and is not materially disadvantageous to the Lenders and the Borrower or any Subsidiary receiving all of the assets of the relevant dissolved or liquidated Subsidiary, (zv) any Subsidiary may sell, transfer, lease merge or otherwise dispose of all consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.03 so long as the continuing or substantially all of its assets to the Borrowers or a Subsidiary Guarantor (provided that if such Subsidiary is a Subsidiary Guarantor, the transferee in such transaction surviving person shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment unless otherwise permitted by Section 6.04 by way 6.03), which shall be a Loan Party if the merging or consolidating Subsidiary was a Loan Party and which together with each of mergerits Subsidiaries shall have complied with any applicable requirements of Section 5.10, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, merge or consolidate with or into another Person any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.04 or (vii) the Borrower may merge or consolidate with or into any other person; provided that if the person formed by or surviving any such merger or consolidation is not the Borrower (such other person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to supplements to the Loan Documents or other documents or instruments, in each case in a form reasonably satisfactory to the Administrative Agent, (C) the Successor Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer stating that such merger or consolidation complies with the applicable requirements set forth in this clause (a)(vii) (including the no Event of Default requirement set forth above) and, if reasonably requested by the Administrative Agent, a customary opinion of counsel and such other security documentation and filings, officer’s certificates and organizational documentation that is reasonably requested by the Administrative Agent (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement);
(b) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (b) below or a sale, transfer or shall be made in compliance with Section 6.03;
(c) other disposition Dispositions of assets in an aggregate amount not to exceed $15,000,000; provided, that does not constitute an Asset Sale; and (viithe Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.extent required thereby;
(bd) Engage in any Asset Sale unless if the assets sold, transferred or otherwise disposed of have a Dispositions for fair market value (as determined in excess of $1,000,000 good faith by the Borrower) so long as (i) the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby, (ii) at the time of such Asset Sale Disposition (other than any such Disposition made pursuant to a commitment entered into at a time when no Event of Default exists), no Event of Default has occurred and is for consideration continuing or would result therefrom and (iii) at least 75% of which is the proceeds of such Disposition consist of Cash Equivalents; provided that, for purposes of this clause (iii), each of the following shall be deemed to be Cash Equivalents: (a) the amount of any liabilities (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash or Cash Equivalents or within 180 days after receipt thereof (to the extent of the cash received), (c) any Designated Non-Cash Consideration to received by the extent that Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (d) that is at such that time does outstanding, not to exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Disposition, to the extent that the Borrower and each other Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with the Disposition and (e) consideration consisting of Indebtedness of the Borrower or a Subsidiary (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not the Borrower or a Subsidiary in connection with the Disposition and that is cancelled;
(e) any Disposition to effect the formation of any Subsidiary that is a Divided LLC or Divided LP, as applicable and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any Equity Interests of such Divided LLC or a Divided LP) in connection therewith is otherwise permitted hereunder;
(f) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) an amount equal to the net proceeds of such Disposition are applied to the purchase price of such replacement property within 90 days or (iii) such Disposition is allowable under Section 1031 of the Code, or any comparable or successor provision, is for like property and for use in a business in compliance with Section 6.07;
(g) any usual and customary leases, subleases, licenses or sublicenses entered into in the ordinary course of business or consistent with industry practice and that do not materially interfere with the business of the Borrower and its Subsidiaries, taken as a whole;
(h) Dispositions of Cash Equivalents;
(i) Investments permitted by Section 6.03, Restricted Payments permitted by Section 6.05, Voluntary Junior Prepayments permitted by Section 6.08 and Liens permitted by Section 6.02, in each case, other than by reference to this Section 6.04(i);
(j) Dispositions in connection with a transaction permitted under Section 6.10;
(k) Dispositions of accounts in the ordinary course of business in connection with the settlement or compromise thereof;
(l) any Disposition of obsolete, damaged or worn out property or assets in the ordinary course of business or consistent with industry practice or any disposition of inventory or goods (or other assets) held for sale or no longer used or useful in the ordinary course of business;
(m) any Disposition of improvements made to leased real property to landlords in the ordinary course of business or consistent with industry practice;
(n) any Disposition of assets for purposes of charitable contributions or similar gifts to the extent such assets are not material to the ability of the Borrower and its Subsidiaries, taken as a whole, to conduct its business in the ordinary course;
(o) leases to its franchisees or leases or subleases to operators of portions of the travel centers, including, without limitation, restaurants, gaming rooms, alternative fuel operations and other provisional services or property relating to the operating of travel centers in the ordinary course of business;
(p) [reserved];
(i) the lease, assignment or sublease, license or sublicense of any real or personal property in the ordinary course of business or consistent with industry practice and (ii) such consideration is at least equal the exercise of termination rights with respect to any lease, sublease, license or sublicense or other agreement;
(r) any issuance, Dispositions or sale of Equity Interests in, or Indebtedness, assets or other securities of, an Unrestricted Subsidiary;
(s) foreclosures, condemnation, expropriation, eminent domain or any similar action (including for the avoidance of doubt, any casualty event) with respect to assets;
(t) the sale, lease, assignment, license, sublease or discount of inventory, equipment, accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of accounts receivable to notes receivable or other Dispositions of accounts receivable in connection with the collection thereof;
(u) the licensing or sublicensing of intellectual property or other general intangibles in the ordinary course of business or consistent with industry practice;
(v) any surrender or waiver of contract rights or the settlement, release or surrender of contract rights or other litigation claims in the ordinary course of business or consistent with industry practice;
(w) the unwinding of any Hedging Agreement;
(x) sales, transfers and other Dispositions of Investments in joint ventures to the fair market value extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(y) the lapse, abandonment or other Disposition of intellectual property rights in the ordinary course of business or consistent with industry practice, which in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(z) the issuance or other Disposition of Equity Interests of the Borrower, so long as such issuance or other Disposition does not result in a Change in Control;
(aa) the issuance of directors’ qualifying shares and shares of Equity Interests of Foreign Subsidiaries issued to foreign nationals as required by any applicable Requirement of Law; and
(bb) the Dispositions of any non-core assets (i) acquired in a transaction permitted hereunder, which assets are not used or useful in the principal business of the Borrower and its Subsidiaries or (ii) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted hereunder. Notwithstanding anything to the contrary in this Section 6.04, in no event shall the Borrower and its Subsidiaries be permitted to sell all or substantially all of the assets being sold, transferred, leased or disposed ofof the Borrower and its Subsidiaries (taken as a whole) pursuant to this Section 6.04.
Appears in 1 contract
Samples: Credit Agreement (TravelCenters of America Inc. /MD/)
Mergers, Consolidations and Sales of Assets. Enter into any merger, consolidation or share exchange, or any Material Asset Disposition (a) Merge into or consolidate with any other personas defined below), or permit any other person Significant Subsidiary so to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowersdo, except that that:
(i) for the avoidance of doubt, the Borrowers and any Significant Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate (A) with or into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers or a Subsidiary Guarantor (provided that if such Subsidiary is a Subsidiary Guarantor, the transferee in such transaction Guarantor shall be the continuing or surviving corporation), (B) with or into any one or more Wholly Owned Subsidiaries or (C) with or into any other Person if the resulting direct or indirect disposition of the stock of such Significant Subsidiary by the Guarantor would not constitute a Borrower Material Asset Disposition;
(ii) any Subsidiary or group of Subsidiaries may enter into any Material Asset Disposition by which its assets are transferred to the Guarantor or a Subsidiary Guarantor), Wholly Owned Subsidiary;
(iii) the Borrowers and Guarantor or any Subsidiary may merge or consolidate with or into or, in the Subsidiaries may make case of the Guarantor, engage in a share exchange with, any Investment permitted by Section 6.04 by way corporation; provided that (A) in the case of the merger, consolidation or amalgamationshare exchange by the Guarantor, the Guarantor shall be the continuing or surviving corporation or, in the case of a merger or consolidation involving The Bank of New York or TPC, the continuing and surviving corporation after such merger or consolidation shall be the Guarantor or a Significant Subsidiary of the Guarantor, (B) immediately after such merger, consolidation or share exchange, no Default shall have occurred and be continuing and (C) such merger, consolidation or exchange does not constitute a Material Asset Disposition;
(iv) for the avoidance Guarantor may merge or consolidate with or into or engage in a share exchange with another corporation where the Guarantor is not the surviving corporation; provided that (A) immediately after such merger, consolidation or share exchange, no Default shall have occurred and be continuing, (B) the surviving entity executes an agreement assuming all of doubtthe Guarantor’s obligations under the Operative Documents, which agreement shall be in form and substance reasonably satisfactory to the Borrowers Required Funding Parties and (C) the Restricted Subsidiaries may sell or otherwise dispose Guarantor shall have delivered a written opinion of assets counsel to the Guarantor, in transactions form and substance (and subject to customary qualifications) reasonably satisfactory to the Required Funding Parties, to the effect that do not constitute an Asset Sale or are permitted pursuant to clause (b) belowsuch agreement is the legal, valid and binding obligation of the surviving entity, enforceable against the surviving entity in accordance with its terms; and
(v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) Guarantor or any Restricted Significant Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer make any sale or other disposition of assets that does required as a condition to any regulatory approval for the acquisition of any Insured Subsidiary or in order not constitute an Asset Sale; and (vii) the Borrowers and to violate any Restricted Subsidiary may make dispositions permitted by Section 6.04applicable law, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02regulation or order in connection with such acquisition.
(b) Engage in any Asset Sale unless if the assets sold, transferred or otherwise disposed of have a fair market value in excess of $1,000,000 (i) such Asset Sale is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. Will not, and will not permit any of its Material Subsidiaries to, (ai) Merge into consolidate with or consolidate be a party to merger with any other person, Person or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all a “substantial part” of the assets of the Guarantor and its assets to the Borrowers or a Subsidiary Guarantor Subsidiaries; provided, however, that (provided that if such Subsidiary is a Subsidiary Guarantor, the transferee in such transaction shall be a Borrower or a Subsidiary Guarantor), (iiiw) the Borrowers and the Subsidiaries may make foregoing shall not prohibit any Investment permitted by Section 6.04 by way of mergersale, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a salelease, transfer or other disposition of assets that to which the Lessor and Assignee have consented, such consent not to by unreasonably withheld if (A) such transaction does not constitute an Asset Sale; and result in a downgrade of either the Guarantor’s S&P Rating or Xxxxx’x Rating, (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.
(b) Engage in any Asset Sale unless if the assets sold, transferred or otherwise disposed of have a fair market value in excess of $1,000,000 (iB) such Asset Sale transaction is for cash consideration at least 75% of which is cash (or Cash Equivalents or Designated Non-Cash Consideration other consideration acceptable to the extent that all Designated Non-Cash Consideration at such time does Lessor and Assignee) in an amount not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to less than the fair market value of the applicable assets, and (C) such transaction, when combined with all other such transactions, would not have a Material Adverse Effect, taken as a whole, (x) any Subsidiary of the Guarantor may merge or consolidate with or into or sell, lease or otherwise convey all or a substantial part of its assets to the Guarantor or any Subsidiary of which the Guarantor holds (directly or indirectly) at least the same percentage equity ownership; provided, that in any such merger or consolidation involving the Guarantor, the Guarantor shall be the surviving or continuing corporation, (y) the Guarantor and its Subsidiaries may sell inventory, reserves and electricity in the ordinary course of business, and (z) the Guarantor may enter into a merger with, or acquisition of all of, another Person so long as:
(1) the Guarantor is the surviving entity,
(2) unless consented to by the Lessor and Assignee, no downgrade in the Guarantor’s S&P Rating or Xxxxx’x Rating would occur as a result of the consummation of such a transaction,
(3) if such transaction is an acquisition, the Board of Directors (or similar governing body) of the Person being acquired has approved being so acquired,
(4) no Potential Default or Event of Default would has occurred and is continuing at the time of, or would occur as a result of, such transaction. As used in this Section 3.2(b), a sale, lease, transfer or disposition of assets during any fiscal year shall be deemed to be of a “substantial part” of the consolidated assets of the Guarantor and its Subsidiaries if the net book value of such assets, when added to the net book value of all other assets sold, transferredleased, leased transferred or disposed ofof the Guarantor and its Subsidiaries (excluding the Marketing Subsidiaries) during such fiscal year (other than inventory, reserves and electricity in the ordinary course of business) exceeds ten percent (10%) of the total assets of the Guarantor and its Subsidiaries, determined on a consolidated basis as of the last day of the immediately preceding fiscal year.
Appears in 1 contract
Samples: Guaranty (Black Hills Corp /Sd/)
Mergers, Consolidations and Sales of Assets. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers a Borrower or a any other Subsidiary Guarantor (provided that if such transferor Subsidiary is a Subsidiary Guarantor, the transferee in such transaction shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger[reserved]; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.
(b) Engage in any Asset Sale unless if the assets sold, transferred or otherwise disposed of have a fair market value in excess of $1,000,000 (i) such Asset Sale is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of.
Appears in 1 contract
Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Mergers, Consolidations and Sales of Assets. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the BorrowersBorrower or of any Subsidiary, except that that:
(i) for the avoidance of doubt, the Borrowers and Borrower may sell or cause any Subsidiary may purchase inventoryto sell all or any part of its Animal Health Business, equipment and other assets including any sale of any Subsidiary engaged principally in the ordinary course of business, Animal Health Business;
(ii) (wA) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers Borrower in a transaction in which either of the Borrowers Borrower is the surviving corporation, and (xB) any wholly owned Subsidiary may merge, liquidate, dissolve merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that (x) if any party to any such transaction is a Loan PartySubsidiary Guarantor, the surviving entity of such transaction shall be a Loan Party), Subsidiary Guarantor or shall become a Subsidiary Guarantor; and (y) if any party to any such transaction is a Wholly Owned Subsidiary, the surviving entity of such transaction shall be a Wholly Owned Subsidiary);
(iii) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all any or substantially all of its assets (A) to the Borrowers Borrower or a any Subsidiary Guarantor (upon voluntary liquidation or otherwise), (B) to any other Subsidiary (provided that if such neither Subsidiary is a Subsidiary Guarantor, the transferee in such transaction shall be a Borrower ) (upon voluntary liquidation or a Subsidiary Guarantorotherwise) or (C) pursuant to an Asset Sale permitted by Section 6.05(b), ; and
(iiiiv) the Borrowers and the Subsidiaries may make any Investment investment expressly permitted by Section 6.04 (other than 6.04(o)), or Asset Sale expressly permitted by way of Section 6.05(b), may be structured as a merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.
(b) Engage Sell, transfer, lease, license, assign or otherwise dispose of any of its assets or property (including Equity Interests of any of the Subsidiaries (other than directors’ qualifying shares)), whether now owned or hereafter acquired (any such disposition, an “Asset Sale”), except:
(i) dispositions of inventory (including raw material), damaged, obsolete, surplus or worn out assets, scrap, assets or property no longer useful in the conduct of the Borrower’s or such Subsidiary’s business, and Permitted Investments, in each case disposed of in the ordinary course of business, including (A) the sale of the manufacturing facility and associated warehouses and parking lots located in St. Petersburg, Florida and owned as of the Effective Date by JMI-Xxxxxxx Pharmaceuticals, Inc. and (B) the sale of the facility located at Xxx Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx;
(ii) Asset Sales between or among Foreign Subsidiaries;
(iii) Asset Sales resulting from a settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of the Borrower or any Subsidiary;
(iv) licenses or sublicenses of intellectual property and general intangibles and licenses, leases or subleases of other real or personal property, in each case which do not materially interfere with the business of the Borrower and its Subsidiaries;
(v) dispositions of Margin Stock for cash and for fair market value as determined in good faith by the board of directors of the Borrower;
(vi) the discount, write-off or sale of overdue accounts receivable or the factoring at maturity or collection of any accounts receivable, in each case, in the ordinary course of business;
(vii) any Asset Sale unless if the assets sold, transferred or otherwise disposed series of have related Asset Sales having a fair market value not in excess of $1,000,000 1,500,000;
(iviii) such Asset Sale is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to Sales permitted under Section 6.05(a);
(ix) Asset Sales not otherwise permitted under this Section 6.05; provided, the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the aggregate fair market value of each item all assets sold, transferred, leased or disposed of Designated Non-Cash Consideration being measured at pursuant to this clause (ix) shall not exceed $200,000,000 in the time received and aggregate during the term of this Agreement;
(x) any sale or disposition of any investment made pursuant to Section 6.04(a)(ii), (g), (j) or (m); and
(xi) any Asset Sale to the Borrower or any other Subsidiary without giving effect to subsequent changes in valuecomplying with the foregoing requirements of this paragraph (b) and (ii) such consideration is at least equal to so long as the fair market value of the assets being sold, transferred, leased or disposed ofsold by any Loan Party to any person that is not a Loan Party does not exceed $35,000,000 in the aggregate during the term of this Agreement.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Restricted Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Restricted Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Restricted Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Restricted Subsidiary in a transaction in which the surviving entity is a wholly owned Restricted Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Restricted Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers a Borrower or a any other Restricted Subsidiary Guarantor (provided that if such transferor Restricted Subsidiary is a Subsidiary Guarantor, the transferee in such transaction shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Restricted Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger[reserved]; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.
(b) Engage in any Asset Sale unless if the assets sold, transferred or otherwise disposed of have a fair market value in excess of $1,000,000 (i) such Asset Sale is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) (x) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or liquidate or dissolve, or (y) sell, transfer, lease lease, issue or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the BorrowersBorrower, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) for any Restricted Subsidiary (other than the avoidance of doubt, Funded L/C SPV) may merge into the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers Borrower in a transaction in which either of the Borrowers Borrower is the surviving corporation, (xii) any wholly owned Restricted Subsidiary (other than the Funded L/C SPV) may merge, liquidate, dissolve merge into or consolidate with any other wholly owned Restricted Subsidiary in a transaction in which the surviving entity is a wholly owned Restricted Subsidiary and no Person other than the Borrower or a Restricted Subsidiary receives any consideration (provided that if any party to any such transaction is (A) a Loan Party, the surviving entity of such transaction shall be a Loan Party, (B) a Domestic Subsidiary, the surviving entity of such transaction shall be a Domestic Subsidiary and (C) a Core Collateral Subsidiary, the surviving entity shall be a Core Collateral Subsidiary), (yiii) any merger or consolidation of a Restricted Subsidiary (other than the Funded L/C SPV) will be permitted in connection with an Investment permitted by Section 6.05(g), 6.05(j) or 6.05(l) and (iv) any Restricted Subsidiary (other than a Core Collateral Subsidiary and the Funded L/C SPV) may liquidate or dissolve or, solely for purposes of reincorporating in a different jurisdiction, merge if the U.S. Borrower determines in good faith that such liquidation or dissolution or merger is in the best interests of the Borrowers Borrower and is could not materially disadvantageous reasonably be expected to result in a Material Adverse Effect.
(b) Consummate any Asset Sale (notwithstanding that it may be otherwise permitted under paragraph (a) above) (including a Sale of Collateral and a Sale of Core Collateral) (other than in respect of a sale of the South Central Securitization Assets which shall be permitted regardless of whether the requirements of this Section 6.04(b) are satisfied so long as the requirements of clause (d) of this Section 6.04 shall be satisfied) unless (i) other than in the case of a Permitted Tax Lease or a Permitted Environmental Control Lease, the Borrower (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Lenders and (z) any Subsidiary may sell, transfer, lease Fair Market Value of the assets or Equity Interests issued or sold or otherwise dispose disposed of; (ii) other than in the case of all a Permitted Tax Lease, a Permitted Environmental Control Lease, a Permitted Asset Swap or substantially all the sale of its assets to equity interests of an Excluded Project Subsidiary that is made in connection with the Borrowers conversion of a convertible note of such Excluded Project Subsidiary (or a Subsidiary Guarantor portion thereof) into such equity interest (provided that the consideration received at the time of such note was issued shall have satisfied the requirements of this clause (ii)), at least 75% of the consideration received in the Asset Sale by the Borrower or such Restricted Subsidiary is in the form of cash (for purposes of this provision, any securities, notes or other obligations received by the Borrower or any such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days of the receipt of such securities, notes or other obligations, to the extent of the cash received in that conversion will be deemed to be cash); (iii) the Borrower shall apply the Net Cash Proceeds received therefrom in accordance with Section 2.13(b) to the extent required thereby; (iv) any consideration in excess of $15,000,000 received by the Borrower or any Subsidiary Guarantor in connection with such Asset Sale pursuant to this paragraph (b) that is in the form of Indebtedness shall be pledged to the Collateral Agent pursuant to Section 5.09; (v) with respect to any such Asset Sale (or series of related Asset Sales) in an aggregate amount in excess of $50,000,000, the Borrower shall be in compliance, on a pro forma basis after giving effect to such Asset Sale, with the covenants set forth in Sections 6.13 and 6.14, as if such Asset Sale had occurred on the first day of the applicable Test Period; and (vi) after giving effect to any such Asset Sale, no Default or Event of Default shall have occurred and be continuing.
(c) In the case of the Borrower, at any time own, either directly or indirectly or through one or more Loan Parties, beneficially and of record, less than all of the Equity Interests in any Core Collateral Subsidiary (other than such Equity Interests constituting Excluded Core Collateral) and less than all of the Equity Interests in the Funded L/C SPV (other than any preferred interests owned by any LC Issuer or other Persons on behalf of, or at the request of, any LC Issuer in connection with Cash Collateralized Letter of Credit Facilities).
(d) The Borrower or any Restricted Subsidiary may sell South Central Securitization Assets to a Securitization Vehicle in a South Central Securitization; provided that (i) each such South Central Securitization is a Subsidiary Guarantoreffected on market terms, (ii) the transferee aggregate amount of the Sellers’ Retained Interests in such transaction shall be a Borrower or a Subsidiary Guarantor)South Central Securitization does not exceed an amount at any time outstanding that is customary for similar transactions, (iii) the Borrowers proceeds to each such Securitization Vehicle from the issuance of Third Party Securities are applied by such Securitization Vehicle substantially simultaneously with receipt thereof to the purchase from the Borrower or Restricted Subsidiaries of South Central Securitization Assets, and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamation, (iv) for Seller’s Retained Interests in respect of each such Securitization Vehicle shall be pledged in favor of the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted Secured Parties pursuant to the Security Documents; provided that no such pledge shall be required under this clause (biv) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.
(b) Engage in any Asset Sale unless if the assets sold, transferred or otherwise disposed of have a fair market value in excess of $1,000,000 (i) such Asset Sale is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (pledge is prohibited by the governing documentation with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal respect to the fair market value of applicable South Central Securitization; provided further that the assets being sold, transferred, leased Borrower or disposed ofthe applicable Restricted Subsidiary shall have used its commercially reasonable efforts to avoid such prohibition in such governing documentation.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Mergers, Consolidations and Sales of Assets. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or or, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Subsidiary may sell, transfer, lease or otherwise dispose of all any Capital Stock of any Subsidiary, except:
(a) if immediately after giving effect thereto no Event of Default or substantially all of its Default shall have occurred and be continuing (i) any Wholly Owned Subsidiary may (A) merge or consolidate into the Borrower or a Wholly Owned Subsidiary Guarantor in a transaction in which the Borrower or a Wholly Owned Subsidiary Guarantor is the surviving corporation or (B) transfer assets to the Borrowers Borrower or to a Subsidiary Guarantor (provided Security Interest Grantor that if such Subsidiary is a Wholly Owned Subsidiary Guarantoror (ii) upon the receipt of an opinion, in form and substance reasonably acceptable to the transferee in Lenders, by a nationally recognized investment or accounting firm, as to the fairness to the Lenders, any Wholly Owned Subsidiary may merge into or consolidate with or transfer assets to any Person that upon the consummation of such transaction shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamationtransfer is a Wholly Owned Subsidiary Guarantor in a transaction (A) in which no Person other than the Borrower or a Wholly Owned Subsidiary Guarantor receives any consideration and (B) after giving effect to such transaction, (iv) for each of the avoidance of doubtAvailable Total Investment Basket, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do Available Cash Investment Basket, is not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.less than zero;
(b) Engage any Receivables Transfer Subsidiary may merge or consolidate into or transfer assets to another Receivables Transfer Subsidiary in a transaction in which no other Person receives any Asset Sale unless if the assets soldconsideration; and
(c) sales of Accounts expressly permitted by Section 6.08(d), transferred or otherwise disposed of have a fair market value in excess of $1,000,000 (i) such Asset Sale is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in valuee) and (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed off).
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Metris Companies Inc)
Mergers, Consolidations and Sales of Assets. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrowers, except that (i) for the avoidance of doubt, the Borrowers and any Restricted Subsidiary may purchase inventory, equipment and other assets in the ordinary course of business, (ii) (w) any wholly owned Restricted Subsidiary may liquidate or dissolve or merge or consolidate into either of the Borrowers in a transaction in which either of the Borrowers is the surviving corporation, (x) any wholly owned Restricted Subsidiary may merge, liquidate, dissolve into or consolidate with any other wholly owned Restricted Subsidiary in a transaction in which the surviving entity is a wholly owned Restricted Subsidiary (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (y) any Restricted Subsidiary may liquidate or dissolve if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders and (z) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrowers a Borrower or a any other Restricted Subsidiary Guarantor (provided that if such transferor Restricted Subsidiary is a Subsidiary Guarantor, the transferee in such transaction shall be a Borrower or a Subsidiary Guarantor), (iii) the Borrowers and the Restricted Subsidiaries may make any Investment permitted by Section 6.04 by way of merger, consolidation or amalgamation, (iv) for the avoidance of doubt, the Borrowers and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute an Asset Sale or are permitted pursuant to clause (b) below, (v) the Borrowers and the other Restricted Subsidiaries may consummate the Transactions and the Merger[reserved]; (vi) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person person in order to effect an Asset Sale permitted pursuant to clause (b) below or a sale, transfer or other disposition of assets that does not constitute an Asset Sale; and (vii) the Borrowers and any Restricted Subsidiary may make dispositions permitted by Section 6.04, this Section 6.05(a) and Section 6.06 and incur Liens permitted by Section 6.02.
(ba) Engage in any Asset Sale unless if the assets sold, transferred or otherwise disposed of have a fair market value in excess of $1,000,000 (i) such Asset Sale is for consideration at least 75% of which is cash or Cash Equivalents or Designated Non-Cash Consideration to the extent that all Designated Non-Cash Consideration at such time does not exceed $5,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of.
Appears in 1 contract
Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.)
