Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger with any other Person, or sell, lease or otherwise dispose of all or substantially all of its assets; provided that: (i) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor or any Wholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent Guarantor, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary shall be the surviving or continuing corporation; (ii) the Parent Guarantor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; (iii) the Parent Guarantor may sell or otherwise dispose of all or substantially all of its assets to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness. (b) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to: (i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor or a Wholly-owned Restricted Subsidiary; or (ii) the sale of assets for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met: (1) such assets (valued at net book value) do not, together with all other assets of the Parent Guarantor and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period (other than in the ordinary course of business), exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarter; (2) in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and is in the best interests of the Parent Guarantor; and (3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreements.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary to, to (1) consolidate with or be a party to a merger or share exchange with any other Person, corporation or (2) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this Section 5.18) of the assets of Company and its assetsSubsidiaries; provided PROVIDED, HOWEVER, that:
(i) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor Company or any Whollywholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent GuarantorCompany, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary Company shall be the surviving or continuing corporation;
(ii) the Parent Guarantor Company may consolidate or merge merger with or into any other corporation if (1A) Company shall be the corporation which results from such consolidation surviving or merger (the "surviving continuing corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4B) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist shall have occurred and be continuing, and (BC) after giving effect to such consolidation or merger the surviving corporation Company would be permitted by to incur at least $1.00 of additional indebtedness under the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;5.18; and
(iii) the Parent Guarantor any Subsidiary may sell sell, lease or otherwise dispose of all or substantially all any substantial part of its assets to the Company or any wholly-owned Subsidiary.
(b) The Company will not permit any Subsidiary to issue or sell any shares of stock of any class (including as "STOCK" for the purposes of this Section 5.18, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) of such Subsidiary to any Person other than the Company or a wholly-owned Subsidiary, except for consideration which represents the fair market value purpose of qualifying directors, or except in satisfaction of the validly pre-existing preemptive rights of minority shareholders in connection with the simultaneous issuance of stock to the Company and/or a Subsidiary whereby the Company and/or such Subsidiary maintain their same proportionate interest in such Subsidiary.
(c) The Company will not sell, transfer or otherwise dispose of any shares of stock in any Subsidiary (except to qualify directors) or any indebtedness of any Subsidiary, and will not permit any Subsidiary to sell, transfer or otherwise dispose of (except to the Company or a wholly-owned Subsidiary) any shares of stock or any indebtedness of any other Subsidiary, unless:
(1) simultaneously with such sale, transfer or disposition, all shares of stock and all indebtedness of such assets Subsidiary at the time owned by the Company and by every other Subsidiary shall be sold, transferred or disposed of as an entirety; (as determined in good faith by 2) the Board of Directors of the Parent Guarantor) at Company shall have determined, as evidenced by a resolution thereof, that the time retention of such sale or other disposition if (1) the acquiring Person stock and indebtedness is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness.
(b) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor or a Wholly-owned Restricted Subsidiary; or
(ii) the sale of assets for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Parent Guarantor and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period (other than in the ordinary course of business), exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarter;
(2) in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and is longer in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreements.Company;
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, (x) Merge into or consolidate with or be a party to a merger with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, or (y) sell, lease transfer, lease, issue or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets; provided that:
the assets (whether now owned or hereafter acquired) of the Borrower, 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) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Restricted Subsidiary may merge into or consolidate with or into the Parent Guarantor or any Wholly-owned other Restricted Subsidiary so long as in a transaction in which the surviving entity is a Restricted Subsidiary and no Person other than the Borrower or a Restricted Subsidiary receives any consideration (iprovided 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), (iii) any merger or consolidation involving the Parent Guarantor, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary shall be the surviving or continuing corporation;
(ii) the Parent Guarantor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;
(iii) the Parent Guarantor may sell or otherwise dispose of all or substantially all of its assets to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness.
(b) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor will be permitted in connection with an Investment permitted by Section 6.05(g), 6.05(j) or a Wholly-owned 6.05(l) and (iv) any Restricted Subsidiary; or
(ii) the sale of assets for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Parent Guarantor and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period Subsidiary (other than a Core Collateral Subsidiary) may liquidate or dissolve or, solely for purposes of reincorporating in a different jurisdiction, merge if the ordinary course of business), exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarter;
(2) Borrower determines in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and good faith that such liquidation or dissolution or merger is in the best interests of the Parent Guarantor; andBorrower and could not reasonably be expected to result in a Material Adverse Effect.
(3b) immediately after 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) unless (i) the consummation Borrower (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the transaction and Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; (ii) other than in the case of a Permitted Asset Swap, 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); (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 (c) 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 theretoto 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 (Avi) after giving effect to any such Asset Sale, no Default or Event of Default would exist, shall have occurred and be continuing.
(Bc) In the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes case of the foregoing calculationBorrower, there shall not be included at any assets the proceeds time own, either directly or indirectly or through one or more Loan Parties, beneficially and of which were or are applied within 12 months record, less than all of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used Equity Interests in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase AgreementsCore Collateral Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, Merge into or consolidate with or be a party to a merger 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 of its assets; provided that:
the assets (whether now owned or hereafter acquired) of the Borrower or any Restricted Subsidiary, 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) any Wholly Owned Restricted Subsidiary may merge into or consolidate with or into the Parent Guarantor Borrower or any Wholly-owned Restricted Subsidiary so long as other Loan Party in (i) any a transaction in which the Borrower or such other Loan Party is the surviving Person; provided that such merger or consolidation involving does not result in the Parent Guarantor, the Parent Guarantor shall Borrower or such other Loan Party ceasing to be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary shall be the surviving or continuing corporation;
(ii) the Parent Guarantor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of the United States, any state of the United States thereof or the District of Columbia, (2ii) any Wholly Owned Restricted Subsidiary that is not a Loan Party may merge into or consolidate with any other Wholly Owned Restricted Subsidiary that is not a Loan Party in a transaction in which the surviving entity is a Restricted Subsidiary, (iii) any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary may merge into or consolidate with any other Restricted Subsidiary so long as, if one such Subsidiary is a Wholly Owned Restricted Subsidiary, such Wholly Owned Restricted Subsidiary shall survive and continue to be a Wholly Owned Restricted Subsidiary immediately following such merger or consolidation, (iv) the due Borrower and punctual payment any Restricted Subsidiary may make Investments permitted by Section 6.04, (v) any Restricted Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Loan Party and any Loan Party may sell or otherwise dispose of, or part with control of any or all of, the principal Equity Interests of and premiumany Subsidiary to a Loan Party, if any(vi) to the extent otherwise permitted by this Agreement (including Section 6.05(b)), and interest on the Borrower or any of its Subsidiaries may sell all or substantially all of the Notesassets of any of their Subsidiaries and (vii) the Transactions may be consummated.
(b) Make any Disposition (other than a Disposition permitted by Section 6.05(a) or a Restricted Payment permitted by Section 6.06(a)), according to their tenorexcept:
(i) Dispositions of damaged, obsolete, surplus or worn out property, or property no longer used or useful in the business, whether now owned or hereafter acquired, in the ordinary course of business;
(ii) Dispositions of inventory, goods held for sale, cash and Permitted Investments in the due and punctual performance and observation ordinary course of business;
(iii) licensing, sublicensing, abandonment or other Dispositions of intellectual property rights in the ordinary course of business;
(iv) Dispositions of property (other than Equity Interests or all or substantially all of the covenants assets of the Borrower or a Restricted Subsidiary) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(v) the sale or other transfer of products, services or accounts receivable in the Notes ordinary course of business;
(vi) Dispositions of property among the Loan Parties;
(vii) leases and this Agreement subleases of property and real property and licenses and sublicenses thereof, in each case in the ordinary course of business;
(viii) to the extent constituting a Disposition, the termination or unwinding of Hedging Agreements;
(ix) Dispositions by Restricted Subsidiaries that are not Loan Parties to (a) other Restricted Subsidiaries that are not Loan Parties or (b) Loan Parties;
(x) the sale or discount without recourse of accounts receivable in connection with the compromise or collection thereof;
(xi) leases of real property owned in fee that do not interfere in any material respect with the business of the Borrower or the applicable Restricted Subsidiary conducted at such location;
(xii) any condemnation or eminent domain proceedings affecting real property;
(xiii) trade-ins to vendors;
(xiv) the sale or disposition of an interest in a Wholly Owned Subsidiary to a prospective joint venture partner in connection with the creation of, or conversion of such Subsidiary into, a joint venture (including, for the avoidance of doubt, a sale of preferred Equity Interests); provided that the number of Facilities that may be performed or observed subject to joint ventures pursuant hereto shall not exceed the number of Facilities acquired by the Parent Guarantor are expressly assumed Borrower or its Restricted Subsidiaries after the Original Closing Date;
(xv) transfers of property subject to any settlement of, or payment in writing respect of, any property or casualty insurance claim;
(xvi) Dispositions of Investments in joint ventures to the 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;
(xvii) granting of easements, rights-of-way, permits, licenses, restrictions or the like with respect to Real Property, in each case, which do not interfere in any material respect with the ordinary course of business of the Borrower and the Restricted Subsidiaries; and
(xviii) Dispositions by the surviving corporation Borrower and any Restricted Subsidiary not otherwise permitted under this Section 6.05; provided that (1) (x) both immediately before and after the surviving corporation time on which the definitive agreements for such Disposition are entered into, no Default or Event of Default shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed have occurred and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, continuing and (4y) at the time of such consolidation or merger and immediately after giving effect theretotransaction, (A) no Default or Event of Default would exist shall have occurred and be continuing under paragraph (Bb), (c), (g) or (h) of Article VII, (2) the surviving corporation would Net Cash Proceeds of such Disposition are applied in accordance with the requirements of Section 2.13, (3) no less than 75% of the consideration received for such Disposition shall be permitted paid in cash (provided that any Indebtedness for borrowed money of the Borrower or Restricted Subsidiary that is disposing of the asset in question which is assumed by the provisions purchaser of Section 5.3(a)(iii)(1such asset shall be considered cash for purposes of this clause (3) to incur at least U.S. $1.00 as long as the Borrower and its Restricted Subsidiaries no longer have any obligations in respect of additional Indebtedness;
such Indebtedness following such assumption), (iii4) the Parent Guarantor may sell or otherwise dispose of such Dispositions shall not constitute all or substantially all of its the assets to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due Borrower and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, Subsidiaries and (45) at the time of such sale or disposition and immediately after giving effect thereto, any Disposition pursuant to this paragraph (Axviii) no Default or Event of Default would exist and (B) the acquiring corporation would shall be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness.
(b) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor or a Wholly-owned Restricted Subsidiary; or
(ii) the sale of assets for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Parent Guarantor and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period (other than in the ordinary course of business), exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarter;
(2) in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and is in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreements.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Without the prior written consent of Lender, the Company will not, and will not permit any Restricted Subsidiary to, to (i) consolidate with or be a party to a merger or share exchange with any other Personcorporation, or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this Section 5.16) of the assets of Company and its assetsSubsidiaries; provided provided, however, that:
(i) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor Company or any Whollywholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent GuarantorCompany, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary Company shall be the surviving or continuing corporation;; and
(ii) the Parent Guarantor any Subsidiary may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbiasell, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;
(iii) the Parent Guarantor may sell lease or otherwise dispose of all or substantially all any substantial part of its assets to the Company or any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional IndebtednessWholly-owned Subsidiary.
(b) The Parent Guarantor Without the prior written consent of Lender, the Company will notnot permit any Subsidiary to issue or sell any shares of stock of any class (including as "stock" for the purposes of this Section 5.16, any warrants, rights or options to purchase or otherwise acquire stock or other securities exchangeable for or convertible into stock) of such Subsidiary to any person other than the Company or a Wholly-owned Subsidiary, except for the purpose of qualifying directors, or except in satisfaction of the validly preexisting preemptive rights of minority shareholders in connection with the simultaneous issuance of stock to the Company and/or a Subsidiary whereby the Company and/or such Subsidiary maintain their same proportionate interest in such Subsidiary.
(c) Without the prior written consent of Lender, the Company will not sell, transfer or otherwise dispose of any shares of stock in any Subsidiary (except to qualify directors) or any indebtedness of any Subsidiary, and will not permit any Restricted Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor Company or a Wholly-owned Restricted Subsidiary; or
(ii) the sale any shares of assets for cash stock or any indebtedness of any other property to a Person or Persons other than an Affiliate if Subsidiary, unless all of the following conditions are met:
(1i) simultaneously with such assets (valued sale, transfer or disposition, all shares of stock and all indebtedness of such Subsidiary at net book value) do notthe time owned by the Company and by every other Subsidiary shall be sold, together with all other assets of the Parent Guarantor and its Restricted Subsidiaries previously transferred or disposed of during the immediately preceding twelve-calendar month period (other than in the ordinary course of business), exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarteran entirety;
(2ii) in the opinion Board of Directors of the Parent Guarantor's Board Company shall have determined, as evidenced by a resolution thereof, that the retention of Directors, the sale such stock and indebtedness is for fair value and is no longer in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreements.Company;
Appears in 1 contract
Samples: Loan Agreement (Bikers Dream Inc)
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary to, (i) consolidate with or be a party to a merger with any other Person, corporation or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this §5.11) of the assets of the Company and its assetsRestricted Subsidiaries; provided provided, however, that:
(i1) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor Company or any Wholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent GuarantorCompany, the Parent Guarantor Company shall be the surviving or continuing corporation;
(2) the Company may consolidate or merge with any other corporation if (i) the Company shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary shall be the surviving or continuing corporation;
(ii) the Parent Guarantor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) thereto no Default or Event of Default would exist shall have occurred and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;continuing; and
(iii3) the Parent Guarantor any Restricted Subsidiary may sell sell, lease or otherwise dispose of all or substantially all any substantial part of its assets to the Company or any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional IndebtednessWholly-owned Restricted Subsidiary.
(b) The Parent Guarantor Company will notnot permit any Restricted Subsidiary to issue or sell any shares of stock of any class (including as “stock” for the purposes of this §5.11, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) of such Restricted Subsidiary to any Person other than the Company or a Wholly-owned Restricted Subsidiary, except for the purpose of qualifying directors, or except in satisfaction of the validly pre-existing preemptive rights of minority shareholders in connection with the simultaneous issuance of stock to the Company and/or a Restricted Subsidiary whereby the Company and/or such Restricted Subsidiary maintain their same proportionate interest in such Restricted Subsidiary.
(c) The Company will not sell, transfer or otherwise dispose of any shares of stock of any Restricted Subsidiary (except to qualify directors) or any Indebtedness of any Restricted Subsidiary, and will not permit any Restricted Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor Company or a Wholly-owned Restricted Subsidiary; or
(ii) the sale any shares of assets for cash stock or any Indebtedness of any other property to a Person or Persons other than an Affiliate if all of the following conditions are metRestricted Subsidiary, unless:
(1) simultaneously with such assets sale, transfer, or disposition, all shares of stock and all Indebtedness of such Restricted Subsidiary at the time owned by the Company and by every other Restricted Subsidiary shall be sold, transferred or disposed of as an entirety;
(valued at net book value2) do notthe Board of Directors of the Company shall have determined, together with all as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of said shares of stock and Indebtedness is in the best interests of the Company;
(3) said shares of stock and Indebtedness are sold, transferred or otherwise disposed of to a Person, for a cash consideration and on terms reasonably deemed by the Board of Directors to be adequate and satisfactory;
(4) the Restricted Subsidiary being disposed of shall not have any continuing investment in the Company or any other Restricted Subsidiary not being simultaneously disposed of; and
(5) such sale or other disposition does not involve a substantial part (as hereinafter defined) of the assets of the Parent Guarantor Company and its Restricted Subsidiaries.
(d) As used in this §5.11, a sale, lease or other disposition of assets ‘shall be deemed to be a “substantial part” of the assets of the Company and its Restricted Subsidiaries previously if the book value of such assets, when added to the book value of all other assets sold, leased or otherwise disposed of during by the immediately preceding twelve-calendar month period Company and its Restricted Subsidiaries (other than excluding in every case any assets sold, leased or otherwise disposed of in the ordinary course of business), exceed 15either (i) during the 12-month period ending on the date of such sale, lease or other disposition, exceeds 10% of Consolidated Total Net Tangible Assets, determined as of the end of the immediately preceding fiscal quarter;
, or (2ii) in during the opinion period from and after the Closing Date to and including the date of such sale, lease or other disposition, exceeds 25% of Consolidated Net Tangible Assets, determined as of the Parent Guarantor's Board of Directors, the sale is for fair value and is in the best interests end of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtednesspreceding fiscal quarter; provided, however, that assets shall not be deemed to be sold, leased or otherwise disposed of for purposes of the foregoing calculation, there shall not be included any assets computations required by the preceding provisions of this paragraph to the extent that the proceeds of which were or are applied therefrom shall, within 12 months of 90 days from the date of sale of such assets to either (A) sale, lease or other disposition thereof by the acquisition of productive assets useful and intended to Company or its Restricted Subsidiary, be used in to purchase capital assets for the operation of the business of the Parent Guarantor and Company and/or its Restricted Subsidiaries as described in Section 4.6 of a nature similar to and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so sold, leased or otherwise disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any to obtain such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreementsproceeds.
Appears in 1 contract
Samples: Note Agreement (Cabelas Inc)
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, Merge into or consolidate with or be a party to a merger with any other Personperson, 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 any of its assets; provided assets (whether now owned or hereafter acquired) or any Capital Stock of any Subsidiary, except that:
(a) the Borrower and any Subsidiary may sell inventory and Permitted Investments and sell obsolete or worn-out assets in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) any wholly owned subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any wholly owned subsidiary may merge into or consolidate with any other wholly owned Domestic Subsidiary in a transaction in which the surviving entity is a wholly owned Domestic Subsidiary; (iii) any 90%-Owned Foreign Subsidiary may merge into any other 90%-Owned Foreign Subsidiary in a transaction in which the surviving entity is a 90%-Owned Foreign Subsidiary and no person other than the Borrower, a wholly owned Domestic Subsidiary or a 90%-Owned Foreign Subsidiary receives any consideration other than interests in the surviving entity to any applicable minority interest holder not exceeding the proportionate interests of such minority interest holder in the applicable Subsidiary and (iv) any direct wholly owned subsidiary of any Foreign Subsidiary may merge into such Foreign Subsidiary or into another direct wholly owned subsidiary of such Foreign Subsidiary so long as no person other than such Foreign Subsidiary receives any consideration;
(i) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor or any Wholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent Guarantormay sell, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor)transfer, the Wholly-owned Restricted Subsidiary shall be the surviving or continuing corporation;
(ii) the Parent Guarantor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;
(iii) the Parent Guarantor may sell lease or otherwise dispose of all or substantially all any of its assets to any Person Loan Party, (ii) any 90%-Owned Foreign Subsidiary may sell, transfer, lease or otherwise dispose of any of its assets to any 90%-Owned Foreign Subsidiary and (iii) any direct wholly owned subsidiary of any Foreign Subsidiary may sell, transfer, lease or otherwise dispose of any of its assets to such Foreign Subsidiary or another wholly owned subsidiary of such Foreign Subsidiary;
(d) any sale and lease-back transaction may be effected;
(e) any Loan Party or any Subsidiary may sell any assets, provided that (i) the aggregate fair market value of all such assets sold pursuant to this clause (e) shall not exceed $1,000,000 in any fiscal year and (ii) within 60 days after any such asset sale, such Loan Party or Subsidiary shall apply the Net Cash Proceeds thereof to purchase assets used in the business of such Loan Party or Subsidiary or to make an investment in another Loan Party that within such 60-day period uses the proceeds of such investment to purchase assets used in the business of such other Loan Party;
(f) any Loan Party or any Subsidiary may lease or sublease properties in which it has interests or lease any other property in the ordinary course of business; and
(g) a Foreign Subsidiary may issue (i) any director qualifying shares and (ii) its Capital Stock (A) to the extent it is required to do so pursuant to local ownership laws in the applicable foreign country and (B) to the management of such Foreign Subsidiary under any employee stock option, stock purchase, stock grant or other similar incentive or employee benefit plan in existence from time to time. provided, however, that any sale, transfer or other disposition of assets or stock otherwise permitted by this Section 6.05 (other than pursuant to clauses (a), (b) and (c) above) shall not be permitted unless (A) such sale, transfer or other disposition is for consideration at least 80% (or 100% in the case of lease payments) of which represents is cash and (B) such consideration is at least equal to the fair market value of such the assets sold, transferred or disposed of (as determined in good faith by the Board board of Directors directors of the Parent GuarantorBorrower) at and provided, further that for purposes of the time of immediately preceding proviso, (i) any proceeds from such sale used to pay the outstanding principal amount of, premium or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premiumpenalty, if any, interest and interest other amounts on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement any Indebtedness required to be performed repaid under the terms thereof or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement applicable law as a result of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness.
(b) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor or a Wholly-owned Restricted Subsidiary; or
and (ii) in the case of a sale of assets for cash or other property to a Person or Persons other than an Affiliate if all distinct business unit that is structured as a sale of assets, the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets assumption of the Parent Guarantor and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period liabilities (other than in the ordinary course Indebtedness) of business), exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarter;
(2) in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and is in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted such business unit by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; providedpurchaser thereof shall, howeverin each case, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreementsdeemed cash.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary to, to (1) consolidate with or be a party to a merger or share exchange with any other Person, corporation or (2) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this Section 5.18) of the assets of Company and its assetsSubsidiaries; provided provided, however, that:
(i) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor Company or any Wholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent GuarantorCompany, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary Company shall be the surviving or continuing corporation;
(ii) the Parent Guarantor Company may consolidate or merge merger with or into any other corporation if (1A) the corporation which results from such consolidation Company shall be the surviving or merger (the "surviving continuing corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4B) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist shall have occurred and be continuing, and (BC) after giving effect to such consolidation or merger the surviving corporation Company would be permitted by to incur at least $1.00 of additional indebtedness under the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;5.13; and
(iii) the Parent Guarantor any Subsidiary may sell sell, lease or otherwise dispose of all or substantially all any substantial part of its assets to the Company or any Wholly-owned Subsidiary.
(b) The Company will not permit any Subsidiary to issue or sell any shares of stock of any class (including as "stock" for the purposes of this Section 5.18, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) of such Subsidiary to any Person other than the Company or a Wholly-owned Subsidiary, except for consideration which represents the fair market value purpose of qualifying directors, or except in satisfaction of the validly pre-existing preemptive rights of minority shareholders in connection with the simultaneous issuance of stock to the Company and/or a Subsidiary whereby the Company and/or such Subsidiary maintain their same proportionate interest in such Subsidiary.
(c) The Company will not sell, transfer or otherwise dispose of any shares of stock in any Subsidiary (except to qualify directors) or any indebtedness of any Subsidiary, and will not permit any Subsidiary to sell, transfer or otherwise dispose of (except to the Company or a Wholly-owned Subsidiary) any shares of stock or any indebtedness of any other Subsidiary, unless:
(1) simultaneously with such sale, transfer or disposition, all shares of stock and all indebtedness of such assets Subsidiary at the time owned by the Company and by every other Subsidiary shall be sold, transferred or disposed of as an entirety;
(as determined in good faith by 2) the Board of Directors of the Parent GuarantorCompany shall have determined, as evidenced by a resolution thereof, that the retention of such stock and indebtedness is no longer in the best interests of the Company;
(3) at such stock and Indebtedness is sold, transferred or otherwise disposed of to a Person, for a cash consideration and on terms reasonably deemed by the time Board of Directors to be adequate and satisfactory;
(4) the Subsidiary being disposed of shall not have any continuing investment in the Company or any other Subsidiary not being simultaneously disposed of; and
(5) such sale or other disposition if does not involve a substantial part (1as hereinafter defined) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment assets of the principal of Company and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except Subsidiaries taken as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtednessa whole.
(bd) The Parent Guarantor will notAs used in this Section 5.18, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the a sale, lease, transfer lease or other disposition of assets shall be deemed to be a "substantial part" of a Restricted Subsidiary the assets of the Company and its Subsidiaries only if the book value of such assets, when added to the Parent Guarantor or a Wholly-owned Restricted Subsidiary; or
(ii) the sale book value of assets for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets sold, leased or otherwise disposed of by the Parent Guarantor Company and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period (other than in the ordinary course of business)) during the same twelve month period ending on the date of such sale, exceed lease or other disposition, exceeds 15% of Consolidated Total Assets, the consolidated net tangible assets of the Company and its Subsidiaries determined as of the end of the immediately preceding fiscal quarter;
(2) in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and is in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreementsyear.
Appears in 1 contract
Samples: Debenture Purchase Agreement (Environmental Tectonics Corp)
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Without the prior written consent of Lender, no Borrower will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger or share exchange with any other Person, corporation or (2) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (c) of its assets; provided that:
(ithis Section 4.16) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor or any Wholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent Guarantor, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary shall be the surviving or continuing corporation;
(ii) the Parent Guarantor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement assets of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;
(iii) the Parent Guarantor may sell or otherwise dispose of all or substantially all of its assets to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional IndebtednessBorrower.
(b) The Parent Guarantor Without the prior written consent of Lender, no Borrower will notsell, transfer or otherwise dispose of any shares of stock in any Subsidiary or any indebtedness or substantial part of any assets of any Subsidiary, and will not permit any Restricted Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets (except assets sold in the ordinary course to Teltronics or a wholly-owned Subsidiary of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(iTeltronics) the sale, lease, transfer any shares of stock or other disposition any indebtedness or substantial part of any assets of a Restricted Subsidiary to the Parent Guarantor or a Wholly-owned Restricted any other Subsidiary; or
(ii) the sale of assets for cash or other property to a Person or Persons other than an Affiliate if , unless all of the following conditions are met:
(1i) simultaneously with such sale, transfer or disposition, all shares of stock and any indebtedness or assets of such Subsidiary at the time owned by Teltronics and by every other Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of Teltronics shall have determined, as evidenced by a resolution thereof, that the retention of such stock and indebtedness or assets is not longer in the best interests of Teltronics;
(iii) such stock and Indebtedness is sold, transferred or otherwise disposed of to a person, for a cash consideration and on terms reasonably deemed by the Board of Directors of Teltronics to be adequate and satisfactory;
(iv) the Subsidiary being disposed of shall not have any continuing investment in Teltronics or any other Subsidiary not being simultaneously disposed of; and
(v) such sale or other disposition does not involve a substantial part (as hereinafter defined) of the assets of Teltronics and its Subsidiaries taken as a whole.
(valued at net vi) The proceeds of any such sale relating to 36371 Yukon Corp shall be used to retire the indebtedness of such Subsidiary to Tri Links, Inc.
(c) As used in this Section 4.16, a sale, lease or other disposition of assets shall be deemed to be a “substantial part” of the assets of a Borrower only if the book value) do notvalue of such assets, together with when added to the book value of all other assets of the Parent Guarantor and its Restricted Subsidiaries previously assets, sold, leased or otherwise disposed of during the immediately preceding twelve-calendar month period by all other Borrowers (other than in the ordinary course of business)) during the same twelve month period ending on the date of such sale, exceed lease or other disposition, exceeds 15% of Consolidated Total Assets, the consolidated net tangible assets of all Borrowers determined as of the end of the immediately preceding fiscal quarteryear.
4. Borrower hereby represent and warrant to Lender that all of the representations made in Section 2 of the Loan Agreement are true and correct as of the date hereof, except as modified or supplemented by Schedule A attached hereto and incorporated herein by this reference.
5. To the best knowledge of Borrower, Borrower hereby represents and warrants to Lender that the address(es) set forth on Schedule B attached hereto and incorporated herein by this reference is the principal place of Borrower’s business and the location of all tangible collateral and the place where the records concerning all intangible collateral are kept and/or maintained.
6. Borrower shall pay to Lender a processing fee of $15,000 and all expenses of Lender incurred in connection with the extension of the maturity date on the closing of this Amendment.
7. If, at any time while the Loan remains outstanding, Borrower sells or otherwise issues any shares of its capital stock or any other of its equity securities (“Equity Financing”), Borrower shall remit a principal payment under the Loan equal to outstanding principal balance of the Loan if gross cash proceeds to Borrower from the Equity Financing are in excess of the outstanding principal balance of the Loan.
8. The obligation of Lender to execute this Amendment and agree to the provisions hereof is subject to Borrowers delivery to Lender of each of the following:
(a) a Fifth Amended and Restated Secured Promissory Note executed by Borrowers, substantially in the form of Exhibit B attached hereto;
(2b) in the opinion Receipt by Lender of the Parent Guarantor's Board principal and interest payment of Directors$55,000 that was due August 1, the sale is for fair value 2003.
9. Borrower warrants and is in the best interests of the Parent Guarantor; andrepresents that
(3a) immediately after the consummation Loan Documents are valid, binding and enforceable against Borrower according to their terms, subject to principles of equity and laws applicable to the transaction and after giving effect theretorights of creditors generally, including bankruptcy laws, (Ab) no Default default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreements.3
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Without the prior written consent of Purchaser, the Company will not, and will not permit any Restricted Subsidiary to, to (i) consolidate with or be a party to a merger or share exchange with any other Personcorporation, or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (d) of this Section 6.18) of the assets of Company and its assetsSubsidiaries; provided provided, however, that:
(i) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor Company or any Wholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent GuarantorCompany, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary Company shall be the surviving or continuing corporation;; and
(ii) the Parent Guarantor Company may consolidate or merge with or into any other corporation if (1) corporation, or acquire all or a substantial portion of the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws assets of any state other entity, provided that such corporation or entity is engaged primarily in the Company's general line of business as conducted on the United States date hereof, and further provided that (A) Company shall be the surviving or the District of Columbiacontinuing corporation, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4B) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist shall have occurred and be continuing, and (BC) such consolidation or merger shall be deemed in the surviving corporation would good faith estimate of the Board of Directors to be permitted by a consolidation or merger that will be accretive to earnings per share not later than the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;fifth full quarter following the consolidation or merger; and
(iii) the Parent Guarantor any Subsidiary may sell sell, lease or otherwise dispose of all or substantially all any substantial part of its assets to the Company or any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional IndebtednessWholly-owned Subsidiary.
(b) The Parent Guarantor Without the prior written consent of Purchaser, the Company will notnot permit any Subsidiary to issue or sell any shares of stock of any class (including as "stock" for the purposes of this Section 6.18, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) of such Subsidiary to any Person other than the Company or a Wholly-owned Subsidiary, except for the purpose of qualifying directors, or except in satisfaction of the validly preexisting preemptive rights of minority shareholders in connection with the simultaneous issuance of stock to the Company and/or a Subsidiary whereby the Company and/or such Subsidiary maintain their same proportionate interest in such Subsidiary.
(c) Without the prior written consent of Purchaser, the Company will not sell, transfer or otherwise dispose of any shares of stock in any Subsidiary (except to qualify directors) or any indebtedness of any Subsidiary, and will not permit any Restricted Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor Company or a Wholly-owned Restricted Subsidiary; or
(ii) the sale any shares of assets for cash stock or any indebtedness of any other property to a Person or Persons other than an Affiliate if Subsidiary, unless all of the following conditions are met:
(1i) simultaneously with such sale, transfer or disposition, all shares of stock and all indebtedness of such Subsidiary at the time owned by the Company and by every other Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of the Company shall have determined, as evidenced by a resolution thereof, that the retention of such stock and indebtedness is no longer in the best interests of the Company;
(iii) such stock and Indebtedness is sold, transferred or otherwise disposed of to a Person, for consideration and on terms reasonably deemed by the Board of Directors to be adequate and satisfactory; and
(iv) the Subsidiary being disposed of shall not have any continuing investment in the Company or any other Subsidiary not being simultaneously disposed of; and
(v) such sale or other disposition does not involve a substantial part (as hereinafter defined) of the assets of the Company and its Subsidiaries taken as a whole.
(valued at net d) As used in this Section 6.18, a sale, lease or other disposition of assets shall be deemed to be a "substantial part" of the assets of the Company and its Subsidiaries only if the book value) do notvalue of such assets, together with when added to the book value of all other assets sold, leased or otherwise disposed of by the Parent Guarantor Company and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period (other than in the ordinary course of business)) during the same twelve month period ending on the date of such sale, exceed 15% lease or other disposition, exceeds 25 percent of Consolidated Total Assets, the consolidated net tangible assets of the Company and its Subsidiaries determined as of the end of the immediately preceding fiscal quarter;
(2) in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and is in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreementsyear.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Company will not, and will not permit any Restricted Subsidiary to, to (i) consolidate with or be a party to a merger with any other Person, corporation or (ii) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined below) of the assets of the Company and its assets; provided thatSubsidiaries, provided, however, if both before and immediately after the transaction, no Event of Default under this Agreement has occurred which has not been cured or waived:
(i) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor Company or any Wholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent GuarantorCompany, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary Company shall be the surviving or continuing corporation;
(ii) the Parent Guarantor any Subsidiary may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbiasell, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;
(iii) the Parent Guarantor may sell lease or otherwise dispose of all or substantially all any substantial part of its assets to the Company or any Person for consideration which represents the fair market value of such assets Wholly-owned Subsidiary; and
(as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1iii) the acquiring Person is a corporation organized under the laws of Company or any state of the United States Subsidiary may sell or the District of Columbia, (2) the due factor any receivable for fair value and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants without recourse in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders ordinary course of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtednessbusiness.
(b) The Parent Guarantor Company will notnot permit any Subsidiary to issue or sell any shares of stock of any class (including as "stock" for the purposes of this subsection 7.3, any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) of such Subsidiary to any Person other than the Company or a Wholly-owned Subsidiary.
(c) The Company will not sell, transfer or otherwise dispose of any shares of stock in any Subsidiary (except to qualify directors) or any Indebtedness of any Subsidiary, and will not permit any Restricted Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets (except assets sold in to the ordinary course Company or a Wholly-owned Subsidiary) any shares of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:stock or any Indebtedness of any other Subsidiary.
(i) the sale, lease, transfer assets sold did not constitute some or other disposition all of the essential assets used in the production of a Restricted Subsidiary to ten percent (10%) or more of the Parent Guarantor or a WhollyAdjusted Net Income from Operations for the four-owned Restricted Subsidiaryquarter period then most recently completed; orand
(ii) the greater of (x) the fair market value of the assets, as determined by a contemporaneous appraisal satisfactory to the Lender, or (y) seventy-five percent (75%) of the net proceeds generated from the sale of assets for cash are used to repay outstanding Funded Debt, and, with respect to real estate, or any other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do asset upon which there is not, together with all other assets of or is not permitted, a lien securing Funded Debt which is prior to the Parent Guarantor and its Restricted Subsidiaries previously disposed of during lien securing the immediately preceding twelve-calendar month period (other than in the ordinary course of business), exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarter;
(2) in the opinion of the Parent Guarantor's Board of DirectorsNotes, the sale is for fair value and is in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there Company shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any use such proceeds paid and applied to the prepayment of first repay amounts outstanding under the Notes as hereinabove provided shall be prepaid as and prior to the extent provided in Section 7.2 of the Note Purchase Agreementsrepaying any other outstanding Funded Debt.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Borrower will not, and will not permit any Restricted Subsidiary to, (i) consolidate with or be a party to a merger with any other Personcorporation or (ii) engage in any Asset Disposition involving any "substantial part of the consolidated assets of the Borrower and its Subsidiaries" (as defined in paragraph (c) of this Section 7.1); provided, or sellhowever, lease or otherwise dispose of all or substantially all of its assets; provided that:
(i) that any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor Borrower or any Wholly-owned Restricted Owned Subsidiary so long as in (i) any merger or consolidation involving the Parent GuarantorBorrower, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary Borrower shall be the surviving or continuing corporation;
(ii) the Parent Guarantor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;
(iii) the Parent Guarantor may sell or otherwise dispose of all or substantially all of its assets to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness.
(b) The Parent Guarantor will notAs used in this Section 7.1, "Asset Disposition" means and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
includes (i) the a sale, lease, transfer lease or other disposition of assets of a Restricted by the Borrower or any Subsidiary to the Parent Guarantor or a Wholly-owned Restricted Subsidiary; or
(ii) the sale of assets for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Parent Guarantor and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period (other than in the ordinary course of business, Excluded Asset Dispositions, as defined in subsection (c) hereof and the sale, lease or other dispositions of assets to the Borrower or to a Wholly-Owned Subsidiary), exceed 15% (ii) the issuance or sale by any Subsidiary of Consolidated Total Assetsany shares of stock of any class (including as "stock" for the purposes of this Section 7.1, determined as any warrants, rights or options to purchase or otherwise acquire stock or other Securities exchangeable for or convertible into stock) of such Subsidiary (except to qualify directors) to any Person other than the end of the immediately preceding fiscal quarter;
(2) in the opinion of the Parent Guarantor's Board of DirectorsBorrower or a Wholly-Owned Subsidiary, the sale is for fair value and is in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (Biii) the Parent Guarantor would be permitted sale, transfer or other disposition by the provisions Borrower of Section 5.3(a)(iii)(1any shares of stock of any Subsidiary (except to qualify directors) to incur at least U.S. $1.00 of additional Indebtedness; providedany Person other than a Wholly-Owned Subsidiary and the sale, however, that for purposes of the foregoing calculation, there shall not be included transfer or other disposition by any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either Subsidiary (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied except to the prepayment Borrower or a Wholly-Owned Subsidiary) of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 any shares of the Note Purchase Agreementsstock of any other Subsidiary.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, (x) Merge into or consolidate with or be a party to a merger with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, or (y) sell, lease transfer, lease, issue or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets; provided that:
the assets (whether now owned or hereafter acquired) of the Borrower, 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) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Restricted Subsidiary may merge into or consolidate with or into the Parent Guarantor or any Wholly-owned other Restricted Subsidiary so long as in a transaction in which the surviving entity is a Restricted Subsidiary and no Person other than the Borrower or a Restricted Subsidiary receives any consideration (iprovided 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), (iii) any merger or consolidation involving the Parent Guarantor, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary shall be the surviving or continuing corporation;
(ii) the Parent Guarantor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;
(iii) the Parent Guarantor may sell or otherwise dispose of all or substantially all of its assets to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness.
(b) The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, sell, lease, transfer, abandon or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor will be permitted in connection with an Investment permitted by Section 6.05(g), 6.05(j) or a Wholly-owned 6.05(l) and (iv) any Restricted Subsidiary; or
(ii) the sale of assets for cash or other property to a Person or Persons other than an Affiliate if all of the following conditions are met:
(1) such assets (valued at net book value) do not, together with all other assets of the Parent Guarantor and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period Subsidiary (other than a Core Collateral Subsidiary) may liquidate or dissolve or, solely for purposes of reincorporating in a different jurisdiction, merge if the ordinary course of business), exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarter;
(2) Borrower determines in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and good faith that such liquidation or dissolution or merger is in the best interests of the Parent Guarantor; andBorrower and could not reasonably be expected to result in a Material Adverse Effect.
(3b) immediately after the consummation 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 transaction and 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) 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 or Equity Interests issued or sold or otherwise disposed of; (ii) other than in the case of a Permitted Asset Swap, 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); (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 (c) 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 theretoto 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 (Avi) after giving effect to any such Asset Sale, no Default or Event of Default would existshall 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.
(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 effected on market terms, (ii) the aggregate amount of the Sellers’ Retained Interests in such South Central Securitization does not exceed an amount at any time outstanding that is customary for similar transactions, (iii) the 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 (Biv) the Parent Guarantor would Seller’s Retained Interests in respect of each such Securitization Vehicle shall be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes pledged in favor of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied Secured Parties pursuant to the prepayment of the Notes as hereinabove Security Documents; provided that no such pledge shall be prepaid as and required under this clause (iv) to the extent that such pledge is prohibited by the governing documentation with respect to the applicable South Central Securitization; provided further that the Borrower or the applicable Restricted Subsidiary shall have used its commercially reasonable efforts to avoid such prohibition in Section 7.2 of the Note Purchase Agreementssuch governing documentation.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Without the prior written consent of Lender, no Borrower will not, and will not permit any Restricted Subsidiary to, consolidate with or be a party to a merger or share exchange with any other Person, corporation or (2) sell, lease or otherwise dispose of all or substantially all any substantial part (as defined in paragraph (c) of its assetsthis Section 4.16) of the assets of such Borrower; provided provided, however, that:
(i) any Restricted Subsidiary Borrower may merge or consolidate with or into the Parent Guarantor Teltronics or any Whollywholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent Guarantor, the Parent Guarantor shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor)Teltronics, the Wholly-owned Restricted Subsidiary Teltronics shall be the surviving or continuing corporation;; and
(ii) the Parent Guarantor any Borrower may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbiasell, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;
(iii) the Parent Guarantor may sell lease or otherwise dispose of all or substantially all any substantial part of its assets to Teltronics or any Person for consideration which represents the fair market value other wholly-owned Subsidiary of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional IndebtednessTeltronics.
(b) The Parent Guarantor Without the prior written consent of Lender, no Borrower will notsell, transfer or otherwise dispose of any shares of stock in any Subsidiary (except to qualify directors) or any indebtedness of any Subsidiary, and will not permit any Restricted Subsidiary to, to sell, lease, transfer, abandon transfer or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer or other disposition of assets of a Restricted Subsidiary to the Parent Guarantor Teltronics or a Whollywholly-owned Restricted Subsidiary of Teltronics) any shares of stock or any indebtedness of any other Subsidiary; or
(ii) the sale of assets for cash or other property to a Person or Persons other than an Affiliate if , unless all of the following conditions are met:
(1i) simultaneously with such sale, transfer or disposition, all shares of stock and all indebtedness of such Subsidiary at the time owned by Teltronics and by every other Subsidiary shall be sold, transferred or disposed of as an entirety;
(ii) the Board of Directors of Teltronics shall have determined, as evidenced by a resolution thereof, that the retention of such stock and indebtedness is no longer in the best interests of Teltronics;
(iii) such stock and Indebtedness is sold, transferred or otherwise disposed of to a person, for a cash consideration and on terms reasonably deemed by the Board of Directors of Teltronics to be adequate and satisfactory;
(iv) the Subsidiary being disposed of shall not have any continuing investment in Teltronics or any other Subsidiary not being simultaneously disposed of; and
(v) such sale or other disposition does not involve a substantial part (as hereinafter defined) of the assets of Teltronics and its Subsidiaries taken as a whole.
(valued at net c) As used in this Section 4.16, a sale, lease or other disposition of assets shall be deemed to be a "substantial part" of the assets of a Borrower only if the book value) do notvalue of such assets, together with when added to the book value of all other assets of the Parent Guarantor and its Restricted Subsidiaries previously sold, leased or otherwise disposed of during the immediately preceding twelve-calendar month period by all other Borrowers (other than in the ordinary course of business)) during the same twelve month period ending on the date of such sale, exceed lease or other disposition, exceeds 15% of Consolidated Total Assets, the consolidated net tangible assets of all Borrowers determined as of the end of the immediately preceding fiscal quarter;
(2) in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and is in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would exist, and (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied to the prepayment of the Notes as hereinabove provided shall be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreementsyear.
Appears in 1 contract
Mergers, Consolidations and Sales of Assets. (a) The Parent Guarantor Borrower will not, and will not permit any Restricted Subsidiary to, (i) consolidate with or be a party to a merger with any other Person, corporation or (ii) sell, lease lease, transfer or otherwise dispose of all or substantially all any substantial part of the assets of the Borrower and its assetsSubsidiaries; provided provided, however, that:
(i1) any Restricted Subsidiary may merge or consolidate with or into the Parent Guarantor Borrower or any Wholly-owned Restricted Subsidiary so long as in (i) any merger or consolidation involving the Parent GuarantorBorrower, the Parent Guarantor Borrower shall be the surviving or continuing corporation;
(2) the Borrower may consolidate or merge with any other corporation if (i) the Borrower shall be the surviving or continuing corporation and (ii) in any merger or consolidation involving a Wholly-owned Restricted Subsidiary (and not the Parent Guarantor), the Wholly-owned Restricted Subsidiary shall be the surviving or continuing corporation;
(ii) the Parent Guarantor may consolidate or merge with or into any other corporation if (1) the corporation which results from such consolidation or merger (the "surviving corporation") is organized under the laws of any state of the United States or the District of Columbia, (2) the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes, according to their tenor, and the due and punctual performance and observation of all of the covenants in the Notes and this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the surviving corporation and the surviving corporation shall furnish to the holders of the Notes an opinion of counsel satisfactory to such holders to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such consolidation or merger and immediately after giving effect thereto, (A) thereto no Default or Event of Default would exist shall have occurred and (B) the surviving corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness;continuing; and
(iii3) the Parent Guarantor any Subsidiary may sell sell, lease, transfer or otherwise dispose of all or substantially all any substantial part of its assets to any Person for consideration which represents the fair market value of such assets (as determined in good faith by the Board of Directors of the Parent Guarantor) at the time of such sale or other disposition if (1) the acquiring Person is a corporation organized under the laws of any state of the United States or the District of Columbiaincluding, (2) the due and punctual payment of the principal of and premiumwithout limitation, if any, and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all of the covenants in the Notes and in this Agreement to be performed or observed by the Parent Guarantor are expressly assumed in writing by the acquiring corporation and the acquiring corporation shall furnish pursuant to the holders of the Notes an opinion of counsel satisfactory to such holders dissolution thereof) to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such acquiring corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, (3) each of the Constituent Company Guarantors confirms in writing its obligations under the Constituent Company Guaranty and/or joinder agreement, as applicable, and (4) at the time of such sale Borrower or disposition and immediately after giving effect thereto, (A) no Default or Event of Default would exist and (B) the acquiring corporation would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtednessany Wholly-owned Subsidiary.
(b) The Parent Guarantor will not, and Borrower will not permit any Restricted Subsidiary toto issue or sell any shares of stock of any class (including as “stock” for the purposes of this Section 7.04, sellany warrants, lease, transfer, abandon rights or options to purchase or otherwise dispose of assets (except assets sold in the ordinary course of business for fair market value and except as provided in Section 5.6(a)(iii)); provided that the foregoing restrictions do not apply to:
(i) the sale, lease, transfer acquire stock or other disposition Securities exchangeable for or convertible into stock) of assets of a Restricted such Subsidiary to any Person other than the Parent Guarantor Borrower or a Wholly-owned Restricted Subsidiary; or
, except (i) stock options or rights granted to employees and stock issued pursuant thereto, (ii) for the sale purpose of assets for cash satisfying regulatory qualifications or other property to a Person or Persons other than an Affiliate if all requirements, (iii) in satisfaction of the following conditions are met:
validly pre-existing preemptive rights of minority shareholders in connection with the simultaneous issuance of stock to the Borrower and/or a Subsidiary whereby the Borrower and/or such Subsidiary maintain their same proportionate interest in such Subsidiary or (1iv) any other issuance or sale provided that at the time of such assets (valued at net book value) do not, together with all other assets of the Parent Guarantor and its Restricted Subsidiaries previously disposed of during the immediately preceding twelve-calendar month period (other than in the ordinary course of business), exceed 15% of Consolidated Total Assets, determined as of the end of the immediately preceding fiscal quarter;
(2) in the opinion of the Parent Guarantor's Board of Directors, the sale is for fair value and is in the best interests of the Parent Guarantor; and
(3) immediately after the consummation of the transaction and after giving effect thereto, (A) no Default or Event of Default would existshall have occurred and be continuing.
(c) The Borrower will not sell, transfer or otherwise dispose of any shares of stock of any Subsidiary (except for the purpose of satisfying regulatory qualifications or requirements) and will not permit any Subsidiary to sell, transfer or otherwise dispose of (B) the Parent Guarantor would be permitted by the provisions of Section 5.3(a)(iii)(1) to incur at least U.S. $1.00 of additional Indebtedness; provided, however, that for purposes of the foregoing calculation, there shall not be included any assets the proceeds of which were or are applied within 12 months of the date of sale of such assets to either (A) the acquisition of productive assets useful and intended to be used in the operation of the business of the Parent Guarantor and its Restricted Subsidiaries as described in Section 4.6 and having a fair market value (as determined in good faith by the Board of Directors of the Parent Guarantor) at least equal to that of the assets so disposed of or (B) the prepayment at any applicable prepayment premium, on a pro rata basis, of Senior Indebtedness of the Parent Guarantor or its Restricted Subsidiaries. It is understood and agreed by the Parent Guarantor that any such proceeds paid and applied except to the prepayment Borrower or a Wholly-owned Subsidiary or for the purpose of the Notes as hereinabove provided satisfying regulatory qualifications or requirements) any shares of stock of any other Subsidiary, unless after giving effect to such sale, transfer, or other disposition, no Default or Event of Default shall have occurred and be prepaid as and to the extent provided in Section 7.2 of the Note Purchase Agreementscontinuing.
Appears in 1 contract
Samples: Credit Agreement (Telvent Git S A)
