Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization. (b) Make any Asset Sale otherwise permitted under paragraph (a) above, except: (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000; (ii) sales, transfers or other dispositions set forth in Schedule 6.05; (iii) any Permitted Reorganization; (iv) Restricted Payments permitted pursuant to Section 6.06(a); (v) in a transaction permitted pursuant to Section 6.04; and (vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Itc Deltacom Inc), First Lien Credit Agreement (Itc Deltacom Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any part of the assets (whether now owned or hereafter acquired) of the Borrower Holdings or any Restricted Subsidiary or less than all the Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all any Equity Interests in or any substantial part of the assets of any other person, except that except:
(ia) the Borrower and any Subsidiary may purchase and sell inventory purchases or other acquisitions of inventory, materials, equipment or other assets in the ordinary course of business and business;
(iib) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge of HMH Holdings (other than a Borrower) into (or with) HMH Holdings in which HMH Holdings is the survivor, (ii) the merger, consolidation or amalgamation of any Borrower in a transaction in which the such Borrower is the surviving corporationsurvivor, (Biii) the merger, consolidation or amalgamation or consolidation of any wholly owned Subsidiary may merge (other than any Borrower) into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (ii) and (iii), no person other than the Borrower or a wholly owned Subsidiary the Loan Party receives any consideration consideration, (provided iv) the merger or consolidation of any Subsidiary that if is not a Loan Party into or with any party to any such transaction other Subsidiary that is not a Loan Party, or (v) any Subsidiary may merge, consolidate or amalgamate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving entity of such transaction person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its subsidiaries shall have complied with the requirements of Section 5.12;
(c) sales or other dispositions of assets described in clause (i), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiaryii), (Diii) or (iv) of the definition of “Asset Sale”;
(d) after the Exit Facility Conversion Date, pursuant to Permitted Acquisitions;
(e) Investments made in accordance with Section 6.04;
(f) after the Exit Facility Conversion Date, any sale, transfer, lease or other disposition (including any Sale and Lease Back Transactions permitted by Section 6.03) of property; provided that (i) at the time of any such transaction, on a pro forma basis after giving effect thereto, the Borrowers are in compliance with the Financial Covenants at such time, no Event of Default shall have occurred and be continuing, or would result therefrom, and the fair market value of property so sold, transferred, leased or otherwise disposed shall not exceed $40,000,000 in the aggregate in any fiscal year and (ii) the consideration received for such property shall be not less than 75% in cash and in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of HMHP or Holdings); provided further, that no sale of the Equity Interests of any Subsidiary may be liquidated, wound up or dissolved, or made pursuant to this clause (f) except in connection with the sale of all or its outstanding Equity Interests that is held by Holdings and any other Subsidiary;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of its businessan accounts receivables financing transaction;
(h) the sale of the real property located in Bellmawr, property New Jersey for fair market value;
(i) any Restricted Subsidiary that is not a Loan Party may liquidate or assets dissolve into another Restricted Subsidiary if the board of directors of Holdings or HMHP determines in good faith that such liquidation or dissolution is in the best interests of Holdings and HMHP and is not materially disadvantageous to the Lenders; and;
(j) any Restricted Subsidiary may be conveyedsell, soldtransfer, leased, transferred lease or otherwise disposed dispose of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property assets or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, business to any Foreign other Restricted Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to such transaction complies with Section 6.06(a);
(v) in a transaction permitted pursuant to 6.04 and Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing6.07.
Appears in 2 contracts
Samples: Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of the Borrowers or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division or business unit of any other Person, except provided that this Section 6.05 shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrowers or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrowers or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrowers or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge U.S. Borrower into the Borrower or with any other U.S. Borrower; provided that in a any such transaction in to which the Lead Borrower is a party, the Lead Borrower is the surviving corporationsurvivor, (Bii) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge U.K. Borrower into or consolidate with any other wholly owned U.K. Borrower, (iii) the merger, consolidation or amalgamation of any Subsidiary that is not a Loan Party into or with any Subsidiary that is not a Loan Party, (iv) the merger, consolidation or amalgamation of any Subsidiary that is not a Loan Party into or with any Subsidiary that is a Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, (v) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Lead Borrower) if the Lead Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Loan Parties and is not materially disadvantageous to the Lenders or (vi) any Subsidiary may merge, consolidate or amalgamate into or with any other Person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving Person shall be a Subsidiary, which shall be a Loan Party if the merging, consolidating or amalgamating Subsidiary was a Loan Party);
(c) sales, (C) any Foreign Subsidiary may merge into transfers, leases or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction dispositions to the Borrowers or a series of transactionsSubsidiary (upon voluntary liquidation, dissolution or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to Borrower or any wholly-owned Subsidiary, (E) any Foreign a Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, that is not a Loan Party in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under reliance on this paragraph (ac) above, except:
shall be permitted only to the extent (i) made in compliance with Section 6.07 and (ii) an Investment in such Subsidiary would be permitted by Section 6.04(b) or (j);
(d) transfers by (x) any Loan Party of Equity Interests in a transaction referred Foreign Person or Qualified CFC Holding Company to (y) a Foreign Person or Qualified CFC Holding Company directly owned by Holdings or a U.S. Borrower; provided, that (i) if the Equity Interests of the transferee have not already been pledged pursuant to a Foreign Pledge Agreement, the Collateral and Guarantee Requirement shall be satisfied with respect to the Equity Interests of the transferee, and (ii) the pledge of any Equity Interests so transferred shall be released by the Collateral Agent upon the consummation of such transfer;
(e) the disposition of tax refunds and related assets in connection with any Permitted Tax Receivable Financing;
(f) Investments permitted by Section 6.036.04, Permitted Liens and Restricted Payments permitted by Section 6.06;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section 6.05 for cash and Permitted Investments; provided provided, that (i) the aggregate fair market value gross proceeds of any or all assets assets, sold, transferred, leased or otherwise disposed of pursuant to in reliance under this clause paragraph (ih) shall not exceed the greater of (x) $10,000,000172.5 million and (y) 72% of EBITDA for the most recently ended Test Period and no Event of Default exists or would result therefrom;
(iii) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation, if any, involving the Lead Borrower, the Lead Borrower is the surviving corporation;
(j) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(k) sales, transfers leases or other dispositions set forth of inventory of the Borrowers and the Subsidiaries determined by the management of the applicable Borrower to be no longer useful or necessary in Schedule 6.05the operation of the business of the Borrowers or any of the Subsidiaries;
(iiil) any Permitted Reorganizationthe issuance by Holdings of the Holdings Preferred Units in accordance with the terms and conditions of the Holdings LLC Agreement (as in effect on the date hereof, as amended or modified in a manner that is not materially adverse to the Lenders in the good faith determination of the Lead Borrower) and, to the extent the same would otherwise be restricted by the terms of this Agreement, the consummation of the other Transactions;
(ivm) Restricted Payments permitted pursuant Permitted Sale and Lease Back Transactions in an aggregate amount not to Section 6.06(a)exceed the greater of (x) $7.5 million and (y) 4% of EBITDA for the most recently ended Test Period at any time outstanding;
(vn) in any disposition of Equity Interests of a transaction permitted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Borrowers and the Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition; provided, that the net investment in the Equity Interests of the Subsidiary would be permitted by Section 6.046.04 if made on the date of such disposition; and
(vio) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value consummation of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingTransactions.
Appears in 2 contracts
Samples: Abl Credit Agreement (Claire's Holdings LLC), Abl Credit Agreement (Claire's Holdings LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) of the Borrower ), or less than all the Equity Interests issue, sell, transfer or otherwise dispose of any SubsidiaryCapital Stock of a Transaction Party, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson (whether by stock or asset purchase, merger or otherwise), except that this Section 6.05 shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business by the Company, (ii) the acquisition or lease of any other operating asset in the ordinary course of business by the Company consistent with the fulfillment of the Mining Activities contemplated by the Pro Forma Production and Financial Projections, (iii) the sale of surplus, obsolete or worn out equipment or other property by the Company in the ordinary course of business in an aggregate amount not to exceed $50,000 over the term of this Agreement, or (iv) the sale by the Company of Cash Equivalents in the ordinary course of business;
(b) [Intentionally omitted];
(c) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(d) the sale of defaulted receivables of the Company in the ordinary course of its business and not as part of an accounts receivables financing transaction; and
(e) the issuance of the Series A Shares issuable to the Investor pursuant to this Agreement and the shares of Common Stock issuable upon the conversion thereof. Notwithstanding anything to the contrary contained in this Section 6.05, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 unless such disposition is for fair market value, and (ii) if at the time thereof and immediately after giving effect thereto no Event sale, transfer or other disposition of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction assets shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under by paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to unless such disposition is for cash consideration unless the sale of any Subsidiary Investor have otherwise consented in writing, which consent shall not be unreasonably withheld or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingdelayed.
Appears in 2 contracts
Samples: Investment Agreement (Desert Hawk Gold Corp.), Investment Agreement (Desert Hawk Gold Corp.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other personPerson or any division, unit or business of any other Person (including, in each case, pursuant to a Delaware LLC Division), except that this Section 6.05 will not prohibit:
(a) if at the time thereof and immediately after giving effect thereto no Specified Event of Default has occurred and is continuing or would result therefrom:
(i) the merger, consolidation or amalgamation of any Restricted Subsidiary (excluding any Borrower) into (or with) any Borrower in a transaction in which such Borrower is the survivor;
(ii) the merger, consolidation or amalgamation of any Restricted Subsidiary (excluding any Borrower) into or with any Restricted Subsidiary that is a Loan Party in a transaction in which the surviving or resulting entity is a Restricted Subsidiary that is a Loan Party; and, in the case of each of the foregoing sub-clauses (i) and (ii), no Person other than a Borrower or a Restricted Subsidiary that is a Loan Party receives any consideration other than consideration permitted under Section 6.04, Section 6.05(2) and/or 6.06, as applicable;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default has occurred and is continuing or would result therefrom (including as a result of a Change in Control) and the Successor Company shall have satisfied the terms and conditions of clause (iv) of the definition of “Subsidiary Borrower” with respect to such Successor Company to the same extent as a Subsidiary Borrower, the merger, consolidation or amalgamation of any Person into (or with) a Borrower in a transaction in which a Borrower is the survivor or the Person formed by or surviving any such merger, consolidation or amalgamation (if other than a Borrower) or the Person to whom such sale, transfer or other disposition will have been made is organized or existing under the laws of an Approved Jurisdiction (such Person, the “Successor Company”) and such Successor Company expressly assumes all the Obligations of such Borrower pursuant to documentation reasonably satisfactory to the Administrative Agent;
(c) if at the time thereof and immediately after giving effect thereto no Default or Event of Default has occurred and is continuing or would result therefrom (including as a result of a Change in Control), the merger, consolidation or amalgamation of any Person into (or with) a Restricted Subsidiary that is a Loan Party in a transaction in which such Restricted Subsidiary is the survivor or the Person becomes a Successor Company and such Successor Company expressly assumes all the Obligations of such Restricted Subsidiary pursuant to documentation reasonably satisfactory to the Administrative Agent;
(d) the merger, consolidation or amalgamation of any Restricted Subsidiary that is not a Loan Party into or with any other Restricted Subsidiary that is not a Loan Party;
(e) any transfer of inventory among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among Holdings and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(f) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary may (excluding any Borrower) of the Company if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to the Lenders; and
(g) the merger, consolidation or amalgamation of any Restricted Subsidiary (excluding any Borrower) with or into any other Person in order to effect a Permitted Investment so long as the continuing resulting or surviving Person will be a Restricted Subsidiary that is a Loan Party or if the merging, consolidating or amalgamating Subsidiary was a Restricted Subsidiary that is a Loan Party and such Subsidiary, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10;
(2) any sale, transfer or other disposition if:
(a) [reserved];
(b) for any such sale, transfer or disposition in excess of the greater of (x) $40,000,000 and (y) 5% of Consolidated EBITDA for the most recently ended Test Period, at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(c) such sale, transfer or disposition is made for fair market value (as determined in good faith by a Responsible Officer); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of Holdings or its Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which Holdings and its Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by Holdings or any Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable disposition; plus
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value (as determined in good faith by a Responsible Officer) of all such Designated Non-Cash Consideration, as determined by the Company in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed as of the applicable date below the greater of (A) $200,000,000 and (B) 25% of Consolidated EBITDA for the most recently ended Test Period as of the date any such Designated Non-Cash Consideration is received (or, at the option of the Company, at the time a binding agreement is entered into in respect of such sale, transfer or disposition), with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sell sale of inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged, unnecessary, unsuitable or worn out equipment or other property in the ordinary course of business or (d) a sale, exchange or other disposition of cash, Cash Equivalents or Investment Grade Securities (or Investments that were Cash Equivalents or Investment Grade Securities when made);
(4) Sale and Lease-Back Transactions permitted by Section 6.03;
(5) Investments permitted by Section 6.04 (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition); provided, that, following any such merger, consolidation or amalgamation involving a Borrower, either
(i) such Borrower is the surviving corporation or
(ii) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have has occurred and be is continuing or would result therefrom (A) any wholly owned Subsidiary may merge into the Borrower in including as a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in result of a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan PartyChange of Control), the surviving entity Person becomes a Successor Company and such Successor Company expressly assumes all the Obligations of such transaction shall Borrower pursuant to documentation reasonably satisfactory to the Administrative Agent;
(6) Permitted Liens;
(7) Restricted Payments permitted by Section 6.06 (other than by reference to Section 6.05);
(8) the sale, lease, discount, assignment, license or sublease of inventory, equipment, accounts receivable, notes receivable, immaterial assets or other current assets held for sale in the ordinary course of business or the conversion of accounts receivable to notes receivable or Investments permitted hereunder or disposition of accounts receivable in connection with the collection or compromise or settlement or in bankruptcy or similar proceeding, thereof and not as part of an accounts receivables financing transaction;
(9) leases, licenses or subleases or sublicenses of any real property or personal property in the ordinary course of business;
(10) sales, leases or other dispositions of inventory or other assets (excluding any such inventory or other assets included in the Borrowing Base) of Holdings or any Restricted Subsidiary determined by the management of the Company to be a Loan Partyno longer useful or necessary or economically profitable to maintain in the operation of the business of Holdings or such Restricted Subsidiary (including allowing any registrations or any applications for registration of any intellectual property or other Intellectual Property Rights to lapse or become abandoned), ;
(C11) acquisitions and purchases made with any Net Cash Proceeds of Assets Sales of any assets or properties not constituting ABL Priority Collateral;
(12) [reserved];
(13) any Foreign Subsidiary may merge into sale, transfer or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofdisposition, in one a single transaction or a series of related transactions, to Borrower of any asset or any wholly-owned Subsidiaryassets having a fair market value, as determined by the Company in good faith, of not more than as of the applicable date below the greater of (Ex) $80,000,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period as of the date such sale, transfer or other disposition is made (or, at the option of the Company, at the time a binding agreement is entered into in respect of such sale, transfer or disposition);
(14) any Foreign Subsidiary may be liquidated, wound up transfer or dissolved, or all or any part disposition of its business, property or assets may be conveyedor issuance or sale of Equity Interests by a Restricted Subsidiary of Holdings to Holdings or by Holdings or a Restricted Subsidiary of Holdings to a Restricted Subsidiary of Holdings, soldin each case, leasedto the extent not prohibited by Section 6.04 (other than by reference to Section 6.05);
(15) so long as the Distribution Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such issuance, transferred sale, pledge or otherwise disposed other disposition, any issuance, sale, pledge or other disposition of Equity Interests in, or Indebtedness or other securities of, in one transaction or a series of transactions, to any Foreign an Unrestricted Subsidiary, ;
(F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G16) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:Restricted Subsidiary may
(i) in a transaction referred convert any intercompany Indebtedness to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000Equity Interests;
(ii) salessettle, transfers discount, write off, forgive or cancel any intercompany Indebtedness or other dispositions set forth in Schedule 6.05;obligation owing by Holdings or any Restricted Subsidiary; and
(iii) settle, discount, write off, forgive or cancel any Permitted ReorganizationIndebtedness owing by any present or former directors, officers, employees, managers, consultants or independent contractors of Holdings, the Company or any Subsidiary or any of their successors or assigns, to the extent made in the ordinary course of business;
(iv17) Restricted Payments permitted pursuant to Section 6.06(a)any sale, transfer or other disposition in connection with a Qualified Receivables Transaction and a Third-Party Vendor Financing Program of assets not in the Borrowing Base;
(v18) [reserved];
(19) the surrender or waiver of obligations of trade creditors or customers or other contract rights in a transaction permitted the ordinary course of business of Holdings or any Restricted Subsidiary or pursuant to Section 6.04; andany Plan of Reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or compromise, settlement, release or surrender of a contract, tort or other litigation claim, arbitration or other disputes;
(vi20) any other Asset Sale exchange of assets for assets (xincluding a combination of assets and cash or Cash Equivalents)
(a) for consideration at least 75% related to a business permitted under Section 5.16 of which is cash, (y) such consideration is at least equal comparable fair or greater market value or usefulness to the fair market value business of the assets being soldHoldings and its Restricted Subsidiaries as a whole, transferred, leased or disposed of and (z) the fair market value (as determined in good faith by the board Company, or dispositions of directors property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or other similar governing body (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property or
(b) to the extent allowable under Section 1031 of the entity making such disposition) Code, the concurrent purchase and sale or exchange of all assets sold, transferred, leased or disposed of pursuant related to this clause (vi) shall not exceed $20,000,000 in the aggregate. To a business permitted under Section 5.16; provided that to the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or property being exchanged constitutes ABL Priority Collateral, such replacement property will constitute ABL Priority Collateral;
(21) condemnations or any similar action on assets not prohibited by this Agreement;
(22) dispositions of Investments (including Equity Interests) in joint ventures or any Subsidiary that is not wholly owned to the extent required by, or Collateral made pursuant to customary buy/sell arrangements or rights of first refusal between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(unless sold 23) the issuance of directors’ qualifying shares and shares issued to foreign nationals to the extent required by applicable law;
(24) [reserved];
(25) (i) the sale, lease, assignment, license or sub-lease of any real, intangible or personal property (including the provision of software under an open source license or the licensing of other Intellectual Property Rights) in the ordinary course of business and which do not materially interfere with the business of Holdings and its Restricted Subsidiaries (taken as a Loan Partywhole) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.and
Appears in 2 contracts
Samples: Credit Agreement (Xerox Corp), Credit Agreement (Xerox Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease assign, lease, sublease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiaryits assets, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that Person except:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (iia) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing continuing, (Ai) any wholly owned Domestic Subsidiary of JSC may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation, corporation and (Bii) any wholly owned Domestic Subsidiary of JSC (other than JSCE or the Borrower) may merge into or consolidate with any other wholly owned Domestic Subsidiary of JSC in a transaction in which the surviving entity is a wholly owned Domestic Subsidiary and of JSC, provided that, in each case, (x) no person Person other than the Borrower JSC or a wholly owned Domestic Subsidiary of JSC receives any consideration and (provided y) in the event that if any Loan Party is a party to any such transaction merger or consolidation and is a Loan Partynot the surviving entity, the surviving entity shall, simultaneously with such merger or consolidation, assume all the obligations of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any Party hereunder and under the other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.Loan Documents;
(b) Make purchases of inventory, equipment and real property in the ordinary course of business;
(c) acquisitions constituting Consolidated Capital Expenditures permitted by Section 7.13;
(d) acquisitions constituting Investments permitted by Section 7.04; and
(e) the acquisition of assets from, or capital stock or other equity interests in, any Asset Sale otherwise Person (in each case, other than those permitted under paragraph by clauses (a) through (d) above, except:
(i) in connection with a transaction referred to in Section 6.03; provided that the Permitted Acquisition for aggregate fair market value consideration of not more than $250,000,000 for all assets sold, transferred, leased or disposed of Permitted Acquisitions made pursuant to this clause (ie) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to during the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions term of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Jefferson Smurfit Corp /De/), Credit Agreement (Jsce Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), and including any disposition of the Borrower property to a Delaware Divided LLC pursuant to a Delaware LLC Division, or less than all the issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell inventory sale of inventory, or the sale of receivables in connection with the settlement or compromise thereof, in each case, in the ordinary course of business and by Parent or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by Parent or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by Parent), (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by Parent or any Subsidiary or (iv) the sale or disposition of Permitted Investments 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 or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or with the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower Parent or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Loan Party into or with any party to any such transaction other Subsidiary that is not a Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary if Parent determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of Parent and is not materially disadvantageous to the Lenders and L/C Issuers or (v) any Subsidiary may merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party)Party if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.10;
(Cc) any Foreign Subsidiary may merge into or consolidate with any other Foreign SubsidiaryInvestments permitted by Section 6.04, Permitted Liens, and Restricted Payments permitted by Section 6.06;
(Dd) any Subsidiary may be liquidated, wound up or dissolved, or all or any the sale of defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(be) Make any Asset Sale sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted under paragraph (a) aboveby this Section 6.05; provided, except:
that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value no Default or Event of all assets soldDefault exists or would result therefrom, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) salesimmediately after giving effect thereto, transfers or other dispositions set forth Parent shall be in Schedule 6.05;
Pro Forma Compliance, (iii) any Permitted Reorganization;
the Net Proceeds thereof are applied in accordance with Section 2.12(b), and (iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in the case of a transaction permitted pursuant to Section 6.04; and
(vi) any sale, transfer or other Asset Sale (x) for consideration disposition of assets in excess of $10,000,000, at least 75% of which is the consideration therefor shall be received in cash at the time of consummation of such transaction; provided, that for purposes of subclause (iv), the following shall be deemed to be cash: (1) the amount of any liabilities (as shown on Parent’s or any Subsidiary’s most recent balance sheet or in the notes thereto) Parent or any Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (y2) any notes or other obligations or other securities or assets received by Parent or such consideration Subsidiary from such transferee that are converted by Parent or such Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received), (3) any Designated Non-Cash Consideration received by Parent or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by Parent), taken together with all other Designated Non-Cash Consideration received pursuant to this subclause (3) that is at least equal that time outstanding, not to exceed, at the time of receipt of such consideration, the greater of (X) $30,000,000 and (Y) 15.0% of EBITDA on a Pro Forma Basis for the most recently ended Test Period (with the fair market value of each item of Designated Non-Cash Consideration being measured at the assets being sold, transferred, leased or disposed of time received and without giving effect to subsequent changes in value) and (z4) the fair with respect to any lease of assets by Parent or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market value terms (as determined in good faith by Parent) where the board payment consideration is at least 75% cash consideration;
(f) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that (i) following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity, as applicable and (ii) following any such merger, consolidation or amalgamation involving Parent, Parent is the surviving entity, as applicable;
(g) leases, licenses, or subleases or sublicenses of directors any real or personal property in the ordinary course of business;
(h) any exchange of assets for services and/or other assets of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by Parent) in excess of $20,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of Parent with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by Parent) in excess of $50,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Parent; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) immediately after giving effect thereto, Parent shall be in Pro Forma Compliance, and (C) the Net Proceeds, if any, thereof are applied in accordance with Section 2.12(b);
(i) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other similar governing body obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the entity making consideration in respect of such dispositionsale or acquisition;
(j) any disposition in the ordinary course of all assets soldbusiness, transferredincluding disposition in connection with any Settlement, leased dispositions of Settlement Assets, Merchant Agreements and dispositions of Investments in joint ventures to the extent required by, or disposed of made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and
(k) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, the merger, consolidation or amalgamation of Parent with or into any other Person; provided that (i) Parent shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not Parent (any such Person, a “Successor Parent”), (1) the Successor Parent shall be a corporation organized or existing under the laws of the United States, any State thereof or Puerto Rico, (2) the Successor Parent shall expressly assume all the obligations of Parent under this clause Agreement and the other Loan Documents to which Parent is a party pursuant to a supplement, amendment or restatement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (vi3) Parent shall not exceed $20,000,000 have given notice to the Lenders of the proposed transaction at least ten (10) Business Days (or such shorter period agreed to by the Administrative Agent) prior to the consummation thereof, (4) the Administrative Agent shall have received all documentation and other information (including the Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, that has been requested at least five (5) Business Days prior to the consummation of the proposed transaction, (5) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement, amendment or restatement to this Agreement or any Loan Document comply with this Agreement and (6) if requested by the Administrative Agent, the Borrower shall have delivered to the Administrative Agent an opinion of counsel in form and substance reasonably satisfactory to the aggregateAdministrative Agent covering such matters reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Parent, will succeed to, and be substituted for, Parent under this Agreement. To Notwithstanding anything to the extent any Subsidiary contrary contained above in this Section 6.05, no sale, transfer or Collateral is sold as other disposition of assets shall be permitted by this Section 6.056.05 (other than sales, transfers, leases, licenses or the Required Lenders other dispositions to Loan Parties or all the Lenders, pursuant to Section 6.05(c)) unless such disposition is for fair market value (as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created determined in good faith by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingParent).
Appears in 2 contracts
Samples: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory inventory, materials and equipment in the ordinary course of business and may license intellectual property in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Au) any Subsidiary may change its form of organization in compliance with Section 5.6(a), if applicable, (v) any Person may make investments and advances permitted by Section 6.4, (w) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bx) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or Borrower, a wholly owned Subsidiary or the De Minimis Holders receives any consideration (provided provided, that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fy) the Borrower and the Subsidiaries may make Permitted Acquisitions and (Gz) Holdings and any Subsidiary of the Subsidiaries Borrower may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) merge with another person in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other constituting an Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoinghereunder.
Appears in 2 contracts
Samples: Credit Agreement (Polypore International, Inc.), Credit Agreement (Polypore International, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other personPerson, or permit any other person Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell inventory sale of inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of intellectual property, in each case in the ordinary course of business and by the Borrower or any of its Relevant Subsidiaries, (ii) the sale of any other asset in the ordinary course of business by the Borrower or any of its Relevant Subsidiaries, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any of its Relevant Subsidiaries, including motor vehicles or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger or consolidation of any wholly owned Relevant Subsidiary may merge of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bii) the merger or consolidation of any wholly owned Relevant Subsidiary may merge of the Borrower into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, amalgamation or consolidation of any Subsidiary of the Borrower that if is not a Loan Party into or with any party to any such transaction other Subsidiary of the Borrower that is not a Loan Party, (iv) the surviving liquidation, winding up, or dissolution or change in form of entity of any Relevant Subsidiary of the Borrower if the Borrower determines in good faith that such transaction shall be a liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) the change in form of entity of the Borrower if the Borrower determines in good faith that such change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (vi) the Borrower may merge or consolidate with Crestwood Equity Partners to the extent that Crestwood Equity Partners (A) survives such merger or consolidation, (B) expressly assumes the obligations of the Borrower under the Loan Party), Documents pursuant to documentation reasonably satisfactory to the Administrative Agent and (C) satisfies the Holding Company Condition immediately prior to such merger or consolidation;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); provided that any Foreign sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary may merge into of the Borrower that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or consolidate with other dispositions by a Loan Party to a Subsidiary that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofleased in reliance upon paragraph (g) below shall not exceed, in one transaction any fiscal year of the Borrower, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and dividends, distributions, redemptions, purchases, retirements or a series other acquisitions for value permitted by Section 6.06;
(f) the sale of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant in reliance upon this paragraph (g) and in reliance upon the second proviso to this clause paragraph (c) above shall not exceed, in any fiscal year of the Borrower, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided further that the Net Proceeds thereof are applied in accordance with Section 2.11(c), as applicable; and provided further that after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(h) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Relevant Subsidiary, the surviving or resulting entity shall not exceed $10,000,000be a Loan Party;
(iii) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Relevant Subsidiary in the ordinary course of business;
(j) abandonment, cancellation or disposition of any intellectual property of the Borrower in the ordinary course of business;
(k) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(l) sales, transfers transfers, leases or other dispositions of assets or 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 Schedule 6.05joint venture arrangements and similar binding arrangements;
(iiim) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04[reserved]; and
(vin) any the Empire JV Transactions. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other Asset Sale disposition of assets shall be permitted by this Section 6.05 (xother than sales, transfers, leases or other dispositions (1) to Loan Parties pursuant to paragraph (c) hereof, (2) or pursuant to paragraphs (e), (l) or (n) hereof) unless such disposition is for consideration fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (d) or (j) of this Section 6.05 unless such disposition is for at least 75% of which is cash, (y) such cash consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors no sale, transfer or other similar governing body disposition of the entity making such disposition) assets in excess of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) $20.0 million shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions paragraph (g) of this Section 6.05 with respect to unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (ii) and (iii), the sale amount of any secured Indebtedness or other Indebtedness of a Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to of the Borrower that is not a Loan PartyParty (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 2 contracts
Samples: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), and including any disposition of the Borrower property to a Delaware Divided LLC pursuant to a Delaware LLC Division, or less than all the issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the purchase and sale of inventory, or the sale of receivables in connection with the settlement or compromise thereof, in each case, in the ordinary course of business by Parent or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by Parent or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by Parent or Borrower), (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by Parent or any Subsidiary, (iv) the sale or disposition of Permitted Investments in the ordinary course of business or (v) dispositions to Parent or any of the Subsidiaries; provided that the aggregate amount of dispositions by Loan Parties to non-Loan Parties pursuant to this clause (v), when taken together with the aggregate amount of Investments made pursuant to Section 6.04(b)(iii), shall not exceed the greater of (X) $106,000,000 and (Y) 40% of EBITDA on a Pro Forma Basis for the most recently ended Test Period;
(i) the merger, consolidation or amalgamation of any Subsidiary into or with the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger, consolidation or amalgamation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party, (iii) the merger, consolidation or amalgamation of any Subsidiary that is not a Loan Party into or with any other Subsidiary, (iv) the liquidation or dissolution or change in form or jurisdiction of entity of any Subsidiary if Parent determines in good faith that such transaction is in the best interests of Parent and is not materially disadvantageous to the Lenders and L/C Issuers or (v) any Subsidiary may purchase merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04;
(c) (i) Investments permitted by Section 6.04, (ii) Permitted Liens, and sell inventory (iii) Restricted Payments permitted by Section 6.06;
(d) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(e) sales, transfers, leases, licenses or other dispositions of assets; provided, that (i) no Default or Event of Default exists or would result therefrom, (ii) the Net Proceeds thereof are applied in accordance with Section 2.12(b) to the extent required thereby and (iii) in the case of a sale, transfer or other disposition of assets in excess of the greater of (i) $16,875,000 and (ii) 6% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended, at least 75% of the consideration therefor shall be received in cash at the time of consummation of such transaction; provided, that for purposes of subclause (iii), the following shall be deemed to be cash: (1) the amount of any liabilities (as shown on Parent’s or any Subsidiary’s most recent balance sheet or in the notes thereto) Parent or any Subsidiary (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (2) any notes or other obligations or other securities or assets received by Parent or such Subsidiary from such transferee that are converted by Parent or such Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received), (3) any Designated Non-Cash Consideration received by Parent or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by Parent), taken together with all other Designated Non-Cash Consideration received pursuant to this subclause (3) that is at that time outstanding, not to exceed, at the time of receipt of such consideration, the greater of (X) $40,000,000 and (Y) 15.0% of EBITDA on a Pro Forma Basis for the most recently ended Test Period (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (4) with respect to any lease of assets by Parent or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by Parent) where the payment consideration is at least 75% cash consideration;
(f) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that (i) following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity, as applicable and (ii) following any such merger, consolidation or amalgamation involving Parent, Parent is the surviving entity, as applicable;
(g) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(h) any exchange of assets for services and/or other assets of comparable or greater value; provided, that (i) with respect to any exchange of assets that are Collateral for other assets, the consideration received by the transferor for such exchange consists of assets that will constitute Collateral, (ii) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (iii) in the event of a swap with a fair market value (as determined in good faith by Parent) in excess of $20,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of Parent with respect to such fair market value and (iv) in the event of a swap with a fair market value (as determined in good faith by Parent) in excess of $50,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Parent; provided, further, that (A) no Default or Event of Default exists or would result therefrom, (B) immediately after giving effect thereto, Parent shall be in Pro Forma Compliance, and (C) the Net Proceeds, if any, thereof are applied in accordance with Section 2.12(b);
(i) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(j) any disposition in the ordinary course of business, including disposition in connection with any Settlement, dispositions of Settlement Assets, Merchant Agreements and dispositions of Investments in joint ventures to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(k) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, the merger, consolidation or amalgamation of Parent with or into any other Person; provided that (Ai) Parent shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any wholly owned Subsidiary may merge into the Borrower in such merger, consolidation or amalgamation is not Parent (any such Person, a transaction in which the Borrower is the surviving corporation“Successor Parent”), (B1) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction Successor Parent shall be a Loan Party)corporation organized or existing under the laws of the United States, any State thereof or Puerto Rico, (C2) any Foreign Subsidiary may merge into the Successor Parent shall expressly assume all the obligations of Parent under this Agreement and the other Loan Documents to which Parent is a party pursuant to a supplement, amendment or consolidate with any other Foreign Subsidiaryrestatement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (D3) any Subsidiary may be liquidated, wound up Parent shall have given notice to the Lenders of the proposed transaction at least ten (10) Business Days (or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, such shorter period agreed to Borrower or any wholly-owned Subsidiaryby the Administrative Agent) prior to the consummation thereof, (E4) any Foreign Subsidiary may be liquidatedthe Administrative Agent shall have received all documentation and other information (including the Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, wound up or dissolvedincluding the USA PATRIOT Act and the Beneficial Ownership Regulation, or all or any part that has been requested at least five (5) Business Days prior to the consummation of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiarythe proposed transaction, (F5) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and the Subsidiaries may make Permitted Acquisitions such supplement, amendment or restatement to this Agreement or any Loan Document comply with this Agreement and (G6) Holdings if requested by the Administrative Agent, the Borrower shall have delivered to the Administrative Agent an opinion of counsel in form and substance reasonably satisfactory to the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted Administrative Agent covering such matters reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Parent, will succeed to, and be substituted for, Parent under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000Agreement;
(iil) sales, transfers or other dispositions set forth in Schedule 6.05of property subject to casualty events upon receipt of the Net Proceeds of such event;
(iiim) dispositions (including issuances or sales) of Equity Interests in, or Indebtedness owing to, or of other securities of, an Unrestricted Subsidiary (other than any Unrestricted Subsidiaries the assets of which consist primarily of cash or Permitted Reorganization;
(iv) Investments received from an Investment by the Borrower and/or any Restricted Payments permitted pursuant to Section 6.06(aSubsidiary into it);
(vn) dispositions to the extent of any exchange of like property (excluding any boot thereon permitted by such provision) for use in a transaction permitted pursuant any business conducted by the Parent and the Subsidiaries to the extent allowable under Section 6.041031 of the Code (or comparable or successor provision);
(o) dispositions in connection with the unwinding of any Swap Agreement;
(p) the lapse, abandonment, dedication to the public, discontinuance of the use or maintenance or other disposition of any intellectual property if determined by the Borrower or any Restricted Subsidiary in its reasonable business judgment that such lapse, abandonment, dedication to the public, discontinuance or other disposition is desirable in the conduct of its business; and
(viq) any other Asset Sale (x) for consideration at least 75% disposition of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined acquired in good faith by the board of directors a Permitted Business Acquisition or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased Investment permitted hereunder that Parent or disposed of pursuant to this clause (vi) shall Borrower determines will not exceed $20,000,000 be used or useful in the aggregatebusiness of Parent and its Subsidiaries. To the extent any Subsidiary or Collateral is sold disposed of as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to Person other than a Loan Party) , such Collateral shall be sold free and clear of the Liens created by the Security Loan Documents, and, if requested by the Administrative Agent, upon the certification by a Responsible Officer of Parent or Borrower that such disposition is permitted by this Agreement, and without limiting the provisions of Section 9.18 the Agents shall be authorized to, and shall, take all any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Parent or Borrower in order to effect the foregoingforegoing (and the Secured Parties hereby authorize and direct the Agents to conclusively rely on any such certification in performing its obligations under this sentence). Notwithstanding anything to the contrary contained above in this Section 6.05, no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties or pursuant to Section 6.05(c)) unless such disposition is for fair market value (as determined in good faith by Parent).
Appears in 2 contracts
Samples: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other personPerson, or permit any other person Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell inventory sale of inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of intellectual property, in each case in the ordinary course of business and by the Borrower or any of its Relevant Subsidiaries, (ii) the sale of any other asset in the ordinary course of business by the Borrower or any of its Relevant Subsidiaries, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any of its Relevant Subsidiaries, including motor vehicles or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger or consolidation of any wholly owned Relevant Subsidiary may merge of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bii) the merger or consolidation of any wholly owned Relevant Subsidiary may merge of the Borrower into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, amalgamation or consolidation of any Subsidiary of the Borrower that if is not a Loan Party into or with any party to any such transaction other Subsidiary of the Borrower that is not a Loan Party, (iv) the surviving liquidation, winding up, or dissolution or change in form of entity of any Relevant Subsidiary of the Borrower if the Borrower determines in good faith that such transaction shall be a liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) the change in form of entity of the Borrower if the Borrower determines in good faith that such change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (vi) the Borrower may merge or consolidate with Crestwood Equity Partners to the extent that Crestwood Equity Partners (A) survives such merger or consolidation, (B) expressly assumes the obligations of the Borrower under the Loan Party), Documents pursuant to documentation reasonably satisfactory to the Administrative Agent and (C) satisfies the Holding Company Condition immediately prior to such merger or consolidation;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); provided that any Foreign sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary may merge into of the Borrower that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or consolidate with other dispositions by a Loan Party to a Subsidiary that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofleased in reliance upon paragraph (g) below shall not exceed, in one transaction any fiscal year of the Borrower, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and dividends, distributions, redemptions, purchases, retirements or a series other acquisitions for value permitted by Section 6.06;
(f) the sale of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant in reliance upon this paragraph (g) and in reliance upon the second proviso to this clause paragraph (c) above shall not exceed, in any fiscal year of the Borrower, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided further that the Net Proceeds thereof are applied in accordance with Section 2.11(c), as applicable; and provided further that after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(h) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Relevant Subsidiary, the surviving or resulting entity shall not exceed $10,000,000be a Loan Party;
(iii) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Relevant Subsidiary in the ordinary course of business;
(j) abandonment, cancellation or disposition of any intellectual property of the Borrower in the ordinary course of business;
(k) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(l) sales, transfers transfers, leases or other dispositions of assets or 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 Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04joint venture arrangements and similar binding arrangements; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part Restricted Subsidiary of the assets of any other personBorrower, except that this Section shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Restricted Subsidiary, (ii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Restricted Subsidiary or (iv) the sale of or other disposition of Permitted Investments 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 continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) any wholly owned newly formed expressly for the purpose of such transaction and which owns no assets or (B) a Subsidiary may merge of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving corporationor resulting entity or the surviving or resulting person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in a transaction involving (A) the Borrower or (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Loan Party, a Subsidiary in a transaction in which Loan Party shall be the surviving entity is a wholly owned or resulting person or such transaction shall be an Investment permitted by Section 6.04 or (iii) the liquidation or dissolution of any Restricted Subsidiary and no person (other than the Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower;
(c) sales, transfers, leases or other dispositions to the Borrower or a wholly owned Subsidiary receives any consideration (upon voluntary liquidation or otherwise); provided that if any party to any such transaction is sales, transfers, leases or other dispositions by a Loan Party, the surviving entity of such transaction Party to a Subsidiary that is not a Subsidiary Loan Party shall be a Loan Party)made in compliance with Section 6.04 and Section 6.07;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and dividends, distributions, redemptions and repurchases permitted by Section 6.06;
(Cf) any Foreign Subsidiary may merge into the sales, transfers or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any dispositions of receivables in the ordinary course of business and not as part of its businessan accounts receivables financing transaction;
(g) sales, property transfers, leases or other dispositions of assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to by the Borrower or any wholly-owned Subsidiary, (E) any Foreign Restricted Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed during any fiscal year $10,000,00025.0 million with any unused amount to be carried forward to the succeeding 730 days; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(iih) sales, transfers transfers, leases or other dispositions set forth by the Borrower or any Restricted Subsidiary of assets that were acquired in Schedule 6.05connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within 270 days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, on a Pro Forma Basis for such disposition of a line of business or manufacturing facility and the consummation of such Permitted Business Acquisition, the Borrower and its Restricted Subsidiaries are in compliance with the Total Leverage Ratio;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09, (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, such transaction must be consummated in compliance with Section 6.04, and (iii) any Permitted Reorganizationif the Borrower is a party thereto, the Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent;
(ivj) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Restricted Payments Subsidiary in the ordinary course of business;
(k) sales, leases or other dispositions of inventory of the Borrower and its Restricted Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower;
(n) sales of Equity Interests of any Subsidiary of the Borrower; provided that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party, the purchaser shall be the Borrower or another Subsidiary Loan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(d));
(o) sales, transfers, leases and other dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries;
(q) transfers of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(r) sales, transfers, leases and other dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries;
(s) sales, transfers, leases and other dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to Section 6.06(a)to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) sales, transfers, leases and other dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and its Restricted Subsidiaries;
(u) voluntary terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(w) sales, transfers, leases and other dispositions of Unrestricted Subsidiaries;
(x) any Restricted Subsidiary of the Borrower may consummate a transaction merger, dissolution, liquidation or consolidation, the purpose of which is to effect a sale, lease, transfer or other disposition of assets otherwise permitted pursuant to under this Section 6.046.05; and
(viy) any sales, transfers, leases and other Asset Sale dispositions permitted by Section 6.04 (xother than Section 6.04(p)) and Section 6.06 (other than Section 6.06(h)) and Liens permitted by Section 6.02. Notwithstanding anything to the contrary contained above in this Section 6.05, (i) no sale, transfer or other disposition of assets in excess of $5.0 million shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions pursuant to clause (b), (c), (l), (r), (s) or (t)) unless such disposition is for consideration fair market value and (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (d) or (k) of this Section 6.05 unless such disposition is for at least 75% of which is cash, (y) such cash consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors no sale, transfer or other similar governing body disposition of the entity making such disposition) assets in excess of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) $5.0 million shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.05, paragraph (g) or the Required Lenders or all the Lenders, as applicable, waive the provisions (h) of this Section 6.05 with respect unless such disposition is for at least 75% cash consideration; provided that for purposes of the 75% cash consideration requirement in the foregoing clauses (ii) and (iii), (x) the amount of any Indebtedness of the Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets and (y) the amount of any trade-in value applied to the sale purchase price of any Subsidiary replacement assets acquired in connection with such sale transfer or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) disposition shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 2 contracts
Samples: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing or would result therefrom,
(Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge with or into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) or any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is the Borrower or, if the Borrower is not a wholly owned party to such transaction, a Subsidiary Loan Party, and no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration (consideration; provided that if in any party to transaction under this clause (b)(ii) involving the Company, the Company shall be the survivor,
(ii) the merger, consolidation or amalgamation of any such transaction Subsidiary that is not a Subsidiary Loan Party into or with any Subsidiary that is not a Subsidiary Loan Party, ,
(iii) the surviving liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, or
(iv) any Subsidiary may merge, consolidate or amalgamate with or into any other person in order to effect an Investment permitted pursuant to Section 7.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 6.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 7.07 and the aggregate gross proceeds of any Foreign Subsidiary may merge into such sales, transfers, leases or consolidate with other dispositions plus the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed ofof in reliance on clause (g) below, shall not exceed, in one transaction any fiscal year of the Borrower, $5,000,000;
(d) Sale and Lease Back Transactions permitted by Section 7.03;
(e) Investments permitted by Section 7.04 and Permitted Liens and Restricted Payments permitted by Section 7.06;
(f) the sale or a series other disposition of transactionsdefaulted receivables and the compromise, to Borrower settlement and collection of receivables in the ordinary course of business or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up in bankruptcy or dissolved, or all or any other proceedings concerning the other account party thereon and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted under paragraph by this Section 7.05 (aor required to be included in this clause (g) above, except:
pursuant to Section 7.05(c)); provided that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased , licensed or otherwise disposed of pursuant to in reliance upon this clause (ig) shall not exceed exceed, in any fiscal year of the Borrower, $10,000,00010,000,000 and (ii) no Default or Event of Default exists or would result therefrom;
(h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that following any such merger, consolidation or amalgamation (i) involving the Borrower, the Borrower is the surviving corporation (and if involving the Company, the Company is the surviving corporation) or such merger, consolidation or amalgamation shall otherwise satisfy the requirements of subsection (b)(i) above and (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(i) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(j) sales, transfers leases or other dispositions set forth of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in Schedule 6.05the operation of the business of the Borrower or any of its Subsidiaries;
(iiik) acquisitions and purchases made with the proceeds of any Permitted ReorganizationAsset Sale pursuant to the first proviso of paragraph (i) of the definition of “Net Proceeds”;
(ivl) Restricted Payments permitted pursuant to Section 6.06(a)[Reserved];
(vm) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract tort or other claims of any kind to the extent that any of the foregoing could not reasonably be expected to have a Material Adverse Effect;
(n) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the swap with a fair market value (as determined in good faith by the board Borrower) in excess of directors $2,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $5,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of the Holdcos or the Borrower; provided that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (n) shall not exceed, in any fiscal year of the Borrower, $10,000,000 and (B) no Default or Event of Default exists or would result therefrom; and
(o) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other similar governing body obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the entity making consideration in respect of such dispositionsale or acquisition. Notwithstanding anything to the contrary contained in Section 7.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 7.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) of this Section 7.05) unless such disposition is for fair market value (as determined in good faith by the Borrower), or if not fair market value, the shortfall is permitted as an Investment under Section 7.04, (ii) no sale, transfer or other disposition of assets in excess of $1,000,000 shall be permitted by paragraph (g) of this Section 7.05 unless such disposition is for at least 75% cash consideration; provided that, for purposes of clause (ii), (a) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet delivered pursuant to Section 6.04(a) or (b) or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the ABL Credit Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration received pursuant to this clause (vic) that is at that time outstanding, not to exceed $5,000,000 at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall not exceed $20,000,000 be deemed to be cash and (iii) in respect of any sale, transfer or other disposition of Accounts and/or Inventory made in any case outside of the aggregateordinary course of business of the Borrower or any other applicable Loan Party, the Borrower shall notify the Administrative Agent thereof in writing and the amount set forth in clause (b) of the definition of “Borrowing Base” shall be reduced by the Net Proceeds thereof until receipt by the Administrative Agent of the next Borrowing Base Certificate delivered pursuant to Section 6.14 hereof. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.057.05 to any Person other than the Holdcos, the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 2 contracts
Samples: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other person, or permit any other person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or Dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part substantially all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell Disposition of inventory in the ordinary course of business and by Parent or any Subsidiary,
(ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by Parent or any Subsidiary or, with respect to operating leases, otherwise for Fair Market Value on market terms (as determined in good faith by the Borrower Representative),
(iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by Parent or any Subsidiary or
(iv) the Disposition of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom,
(i) the merger, amalgamation or consolidation of any Subsidiary with or into Parent or any Borrower in a transaction in which Parent or such Borrower is the survivor,
(ii) the merger, amalgamation or consolidation of any Subsidiary with or into any Guarantor in a transaction in which the surviving or resulting entity is or becomes a Guarantor and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Guarantor receives any consideration (unless otherwise permitted by Section 6.04),
(iii) the merger, amalgamation or consolidation of any Subsidiary that is not a Guarantor with or into any other Subsidiary that is not a Guarantor,
(iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than any Borrower) if (x) the Borrower Representative or Parent determines in good faith that such liquidation, dissolution or change in form is in the best interests of Parent and its Subsidiaries and is not materially disadvantageous to the Lenders and (y) the same meets the requirements contained in the proviso to Section 5.01(a),
(v) any Subsidiary may merge, amalgamate or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04 (other than Section 6.04(m)(ii))), which shall be a Loan Party if the merging, amalgamating or consolidating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10, or
(vi) any Subsidiary may merge, amalgamate or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05;
(c) Dispositions to Parent, a Borrower or a Subsidiary; provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04 (other than Section 6.04(aa));
(d) [reserved];
(e) (i) Investments permitted by Section 6.04 (other than Section 6.04(m)(ii)), Permitted Liens, and Restricted Payments permitted by Section 6.06 and (ii) the Transactions to the extent otherwise prohibited by this Section 6.05;
(f) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(g) other Dispositions of assets (including in connection with sale leaseback transactions), the aggregate Fair Market Value of which does not exceed 15.0% of Consolidated Total Assets (measured as of the last day of the preceding fiscal year or, until the date that audited financial statements of Parent for the first fiscal year ending after the Spinoff Date become available, as of the Spinoff Date) in any fiscal year; provided, that (i) the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby and (ii) any such Dispositions shall comply with the final sentence of this Section 6.05;
(h) Permitted Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Acquisition); provided, that following any such merger, consolidation or amalgamation involving any Borrower, such Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with;
(i) leases, licenses or subleases or sublicenses of any real or personal property in the ordinary course of business;
(j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of Parent and its Subsidiaries determined in good faith by the management of the Borrower Representative to be no longer economically practicable to maintain or useful or necessary in the operation of the business of Parent or any of the Subsidiaries;
(k) Dispositions pursuant to any individual transaction or series of related transactions involving assets with a Fair Market Value of less than $25,000,000;
(l) the purchase and Disposition (including by capital contribution) of Permitted Receivables Facility Assets including pursuant to Qualified Receivables Facilities;
(m) any exchange or swap of assets (other than cash and Permitted Investments) for other assets (other than cash and Permitted Investments) of comparable or greater value or usefulness to the business of Parent and the Subsidiaries as a whole, determined in good faith by the management of the Borrower Representative;
(n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into any Borrower, provided that (A) any wholly owned Subsidiary may merge into the such Borrower in a transaction in which the Borrower is shall be the surviving corporation, entity or (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which if the surviving entity is a wholly owned Subsidiary and no person not the applicable Borrower (such other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Partyperson, the surviving entity of such transaction shall be a Loan Party“Successor Borrower”), (C1) the Successor Borrower shall be an entity organized or existing under the laws of England and Wales, Ireland, Jersey, the United States, any Foreign Subsidiary may merge into state thereof or consolidate with the District of Columbia, or the same country as such Borrower, (2) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto and, in the case of any Security Document, by executing and/or delivering any additional required documents, in each case in a form reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) a certificate of a Responsible Officer stating that such merger, amalgamation or consolidation does not violate this Agreement or any other Foreign SubsidiaryLoan Document and (y) if requested by the Administrative Agent, (D) any Subsidiary may be liquidatedan opinion of counsel to the effect that such merger, wound up amalgamation or dissolved, or all consolidation does not violate this Agreement or any part other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of its businesscounsel (it being understood that if the foregoing are satisfied, property or assets may the Successor Borrower will succeed to, and be conveyedsubstituted for, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the applicable Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(aAgreement);
(vo) any conversion of a Loan Party from a corporation to a limited liability company, or from a limited liability company to a corporation, or other change in a transaction permitted pursuant to Section 6.04corporate formation; and
(vip) the liquidation or dissolution, or transfer of all or substantially all the assets thereof to any Loan Party, or other Asset Sale wind up of Adient Global Holdings Ltd at any time on or after the Borrower Transfer Date. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) shall in each case be permitted unless (xi) such Disposition is for consideration Fair Market Value, and (ii) at least 75% of which is cashthe proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; ; provided, (y) such consideration is at least equal to the fair market value further, that for purposes of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (viii), each of the following shall be deemed to be cash: (a) shall the amount of any liabilities (as shown on Parent’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by Parent or such Subsidiary from the transferee that are converted by Parent or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by Parent or any of its Subsidiaries in such Disposition or any series of related Dispositions, having an aggregate Fair Market Value not exceed $20,000,000 to exceed, in the aggregate. To , the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or greater of $300,000,000 and 3.0% of Consolidated Total Assets when received (with the Required Lenders or all the Lenders, as applicable, waive the provisions Fair Market Value of this Section 6.05 with respect to the sale each item of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, Designated Non-Cash Consideration being measured at the sole cost time received and expense of the applicable Loan Party, without giving effect to subsequent changes in order to effect the foregoingvalue).
Appears in 2 contracts
Samples: Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part Restricted Subsidiary of the assets of any other personBorrower, except that this Section shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Restricted Subsidiary, (ii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Borrower or any Restricted Subsidiary or (iv) the sale of or other disposition of Permitted Investments 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 continuing, (i) the merger of any Subsidiary of Holdings (which shall either be (A) any wholly owned newly formed expressly for the purpose of such transaction and which owns no assets or (B) a Subsidiary may merge of the Borrower) into the Borrower in a transaction in which the Borrower is the surviving corporationor resulting entity or the surviving or resulting person expressly assumes the obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent, (ii) the merger or consolidation of any Subsidiary with or into any other Subsidiary; provided that in a transaction involving (A) the Borrower or (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Loan Party, a Subsidiary in a transaction in which Loan Party shall be the surviving entity is a wholly owned or resulting person or such transaction shall be an Investment permitted by Section 6.04 or (iii) the liquidation or dissolution of any Restricted Subsidiary and no person (other than the Borrower) or change in form of entity of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower;
(c) sales, transfers, leases or other dispositions to the Borrower or a wholly owned Subsidiary receives any consideration (upon voluntary liquidation or otherwise); provided that if any party to any such transaction is sales, transfers, leases or other dispositions by a Loan Party, the surviving entity of such transaction Party to a Subsidiary that is not a Subsidiary Loan Party shall be a Loan Party)made in compliance with Section 6.04 and Section 6.07;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and dividends, distributions, redemptions and repurchases permitted by Section 6.06;
(Cf) any Foreign Subsidiary may merge into the sales, transfers or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any dispositions of receivables in the ordinary course of business and not as part of its businessan accounts receivables financing transaction;
(g) sales, property transfers, leases or other dispositions of assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to by the Borrower or any wholly-owned Subsidiary, (E) any Foreign Restricted Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed during any fiscal year $10,000,00028.75 million with any unused amount to be carried forward to the succeeding 730 days; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(iih) sales, transfers transfers, leases or other dispositions set forth by the Borrower or any Restricted Subsidiary of assets that were acquired in Schedule 6.05connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within 270 days of the date such assets were acquired by the Borrower or such Subsidiary; and provided further that, on a Pro Forma Basis for such disposition of a line of business or manufacturing facility and the consummation of such Permitted Business Acquisition, the Borrower and its Restricted Subsidiaries are in compliance with the Total Leverage Ratio;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09, (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, such transaction must be consummated in compliance with Section 6.04, and (iii) any Permitted Reorganizationif the Borrower is a party thereto, the Borrower shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent;
(ivj) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Restricted Payments Subsidiary in the ordinary course of business;
(k) sales, leases or other dispositions of inventory of the Borrower and its Restricted Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Qualified Capital Stock by the Borrower;
(n) sales of Equity Interests of any Subsidiary of the Borrower; provided that, in the case of the sale of the Equity Interests of a Subsidiary Loan Party, the purchaser shall be the Borrower or another Subsidiary Loan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(d));
(o) sales, transfers, leases and other dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries;
(q) transfers of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor;
(r) sales, transfers, leases and other dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries;
(s) sales, transfers, leases and other dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to Section 6.06(a)to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements;
(t) sales, transfers, leases and other dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Borrower and its Restricted Subsidiaries;
(u) voluntary terminations of Swap Agreements;
(v) the expiration of any option agreement in respect of real or personal property;
(w) sales, transfers, leases and other dispositions of Unrestricted Subsidiaries;
(x) any Restricted Subsidiary of the Borrower may consummate a transaction merger, dissolution, liquidation or consolidation, the purpose of which is to effect a sale, lease, transfer or other disposition of assets otherwise permitted pursuant to under this Section 6.046.05; and
(viy) any sales, transfers, leases and other Asset Sale dispositions permitted by Section 6.04 (xother than Section 6.04(p)) and Section 6.06 (other than Section 6.06(h)) and Liens permitted by Section 6.02. Notwithstanding anything to the contrary contained above in this Section 6.05, (i) no sale, transfer or other disposition of assets in excess of $5.75 million shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions pursuant to clause (b), (c), (l), (r), (s) or (t)) unless such disposition is for consideration fair market value and (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (d) or (k) of this Section 6.05 unless such disposition is for at least 75% of which is cash, (y) such cash consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors no sale, transfer or other similar governing body disposition of the entity making such disposition) assets in excess of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) $5.75 million shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.05, paragraph (g) or the Required Lenders or all the Lenders, as applicable, waive the provisions (h) of this Section 6.05 with respect unless such disposition is for at least 75% cash consideration; provided that for purposes of the 75% cash consideration requirement in the foregoing clauses (ii) and (iii), (x) the amount of any Indebtedness of the Borrower or any Restricted Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets and (y) the amount of any trade-in value applied to the sale purchase price of any Subsidiary replacement assets acquired in connection with such sale transfer or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) disposition shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 2 contracts
Samples: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or Dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part of the assets of any other person or division or line of business of a person, except that this Section 8.05 shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell Disposition of inventory in the ordinary course of business and by the Issuer or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Issuer or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Issuer), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Issuer or any Subsidiary or (iv) the Disposition of Permitted Investments 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 or would result therefrom, (Ai) the merger or consolidation of any wholly owned Subsidiary may merge with or into the Borrower Issuer in a transaction in which the Borrower Issuer is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge with or into or consolidate with any other wholly owned Subsidiary Guarantor in a transaction in which the surviving or resulting entity is or becomes a wholly owned Subsidiary Guarantor and, in the case of each of clauses (i) and (ii), no person other than the Borrower Issuer or a wholly owned Subsidiary Guarantor receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Partyunless otherwise permitted by Section 8.04), (Ciii) the merger or consolidation of any Subsidiary that is not a Subsidiary Guarantor with or into any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Issuer determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Issuer and is not materially disadvantageous to the Noteholder Parties, (v) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiaryperson (other than the Issuer) in order to effect an Investment permitted pursuant to Section 8.04 so long as the continuing or surviving person shall be a Subsidiary Guarantor (unless otherwise permitted by Section 8.04), which shall be a Note Party if the merging or consolidating Subsidiary was a Note Party (Dunless otherwise permitted by Section 8.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 7.10 or (vi) any Subsidiary may be liquidated, wound up merge or dissolved, or all or consolidate with any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, other person in one transaction or a series of transactions, order to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any effect an Asset Sale otherwise permitted under pursuant to this Section 8.05;
(c) Dispositions to the Issuer or a Subsidiary Guarantor (upon voluntary liquidation or otherwise);
(d) so long as no Event of Default exists or would result therefrom, Sale and Lease-Back Transactions permitted by Section 8.03; provided that if such Sale and Lease-Back Transaction results in a Capitalized Lease Obligation, such Capitalized Lease Obligation is permitted by Section 8.01 and any Lien made the subject of such Capitalized Lease Obligation is permitted by Section 8.02;
(e) Investments permitted by Section 8.04, Permitted Liens, and Restricted Payments permitted by Section 8.06;
(f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) other Dispositions of assets to a person that is not an Affiliate of any Note Party; provided, that (i) at the time of such Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the requirements of the last paragraph of this Section 8.05 shall apply to such Disposition and (aiii) abovethe Net Proceeds thereof, except:if any, are applied in accordance with Section 3.02(b);
(h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Issuer, the Issuer is the surviving entity;
(i) leases, licenses or subleases or sublicenses of any real or personal property in a transaction referred to in Section 6.03; provided that the aggregate fair market value ordinary course of all assets sold, transferred, leased business and consistent with past practice or disposed of pursuant to this clause (i) shall not exceed $10,000,000industry practices;
(iij) sales, transfers Dispositions of inventory or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% Dispositions or abandonment of which is cash, (y) such consideration is at least equal to the fair market value Intellectual Property of the assets being sold, transferred, leased or disposed of Issuer and (z) the fair market value (its Subsidiaries determined in good faith by the board of directors or other similar governing body management of the entity making such disposition) of all assets sold, transferred, leased Issuer to be no longer useful or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 necessary in the aggregate. To operation of the business of the Issuer or any of the Subsidiaries;
(k) [Reserved];
(l) [Reserved];
(m) [Reserved];
(n) to the extent constituting an Asset Sale, any Subsidiary termination, settlement or Collateral is sold as permitted by this extinguishment of Hedging Agreements. Notwithstanding anything to the contrary contained in Section 6.058.05 above, or the Required Lenders or all the Lendersno Disposition of assets under Section 8.05(g) or, as applicable, waive the provisions of this Section 6.05 solely with respect to the sale Sale and Lease-Back Transactions referred to in clause (ii) of any Subsidiary or CollateralSection 8.03, such Subsidiary or Collateral (unless sold to a Loan Party) under Section 8.05(d), shall be sold free permitted unless (i) such Disposition is for fair market value (as determined in good faith by the Issuer), or if not for fair market value, the shortfall is permitted as an Investment under Section 8.04, and clear (ii) at least 75% of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense proceeds of the applicable Loan Party, in order such Disposition (except to effect the foregoingNote Parties) consist of cash or Permitted Investments.
Appears in 2 contracts
Samples: Indenture (Fresh Market Holdings, Inc.), Indenture (Fresh Market Holdings, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any SubsidiarySubsidiary (other than pursuant to any Permitted Interest Transfer, any Permitted Joint Venture or transfers of Equity Interests of any Subsidiary to a Loan Party or by a Subsidiary that is not a Subsidiary Guarantor to any Subsidiary or transfers of Equity Interests of a Subsidiary that remains a Subsidiary Guarantor after giving effect to such transfer), or purchase, lease purchase or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (w) Parent or the Borrower may merge with any other person (other than Parent and the Borrower); provided that (1) Parent or the Borrower, as applicable, shall be the continuing and surviving person or the continuing or surviving person shall expressly assume the obligations of Parent or Borrower, as applicable, including all of the obligations under this Agreement and the other Loan Documents, in a manner reasonably acceptable to the Administrative Agent, and (A2) Parent and the Borrower or such continuing or surviving person, as applicable, remains organized under the laws of the United States, any state thereof or the District of Columbia, (x) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (By) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that (A) if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), Party and (CB) to the extent any Foreign Subsidiary may merge into or consolidate with any person other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction than the Borrower or a series wholly owned Subsidiary receives any consideration in connection therewith, then such transaction shall be considered as an investment under the applicable paragraph of transactions, to Borrower or any wholly-owned Subsidiary, Section 6.04) and (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fz) the Borrower and the Subsidiaries may make Permitted Acquisitions or any other investment, loan or advance permitted pursuant to Section 6.04 (including by merger), and (G) Holdings and the Subsidiaries may engage in any enter into Permitted ReorganizationJoint Ventures.
(b) Make any Asset Sale not otherwise permitted under paragraph (a) above, exceptabove unless such Asset Sale is:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration that is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of; provided that for any disposition of assets with a fair market value of more than $100,000,000, at least 75% of such consideration is cash, cash equivalents or Permitted Investments;
(ii) [reserved];
(iii) a Syndication Transaction, provided that the aggregate amount or value of the consideration received by any Permitted Syndication Subsidiary and/or the Borrower and the other Subsidiaries from third parties in connection with such Syndication Transaction (or series of Syndication Transactions), except for the Syndication Transactions listed on Schedule 6.05(b) (the “Syndication Proceeds”), when added to the aggregate Syndication Proceeds from all previous Permitted Syndications on or after the Restatement Date, does not exceed $200,000,000 (any Syndication Transaction meeting the criteria of this Section 6.05(b)(iii) being referred to herein as a “Permitted Syndication Transaction”);
(iv) any Permitted Interest Transfer;
(v) for the sale or other disposition consummated by the Borrower or any of the Subsidiaries after the Restatement Date of assets constituting a subsidiary or business unit or units of the Borrower or the Subsidiaries (including a Facility) or the interest of the Borrower or the Subsidiaries therein, provided that (i) such sale or other disposition shall be made for fair value on an arm’s-length basis and (zii) the consideration received for such sale or other disposition constitutes or would constitute a Permitted Acquisition, Permitted Joint Venture or Permitted Syndication Subsidiary in accordance with the definition thereof;
(vi) the Borrower and the Subsidiaries may abandon, allow to lapse or otherwise dispose of intangible property that the Borrower or such Subsidiary shall determine in its reasonable business judgment is immaterial to the conduct of its business;
(vii) forgiveness of any loans or advances made pursuant to Section 6.04(e);
(viii) transfers of property subject to casualty or a condemnation proceeding;
(ix) Restricted Payments permitted pursuant to Section 6.06;
(x) [reserved]; or
(xi) any investment, loan or advance permitted pursuant to Section 6.04. For the purposes of Section 6.05(b)(i), the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or a Subsidiary (other than subordinated Indebtedness of the Borrower or a Guarantor) and the release of the Borrower or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale;
(ii) securities, notes or other obligations received by the Borrower or any Subsidiary of the Borrower from the transferee that are converted by the Borrower or such Subsidiary into cash or cash equivalents (including Permitted Investments) within 180 days following the closing of such Asset Sale;
(iii) Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Borrower and each other Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Sale;
(iv) consideration consisting of Indebtedness of the Borrower (other than subordinated Indebtedness) received after the Original Closing Date from persons who are not the Borrower or any Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Borrower or any Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed the greater of $800,000,000 and 3.0% of Total Assets (with the fair market value (determined in good faith by the board of directors or other similar governing body each item of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, Designated Non-Cash Consideration being measured at the sole cost time received and expense of the applicable Loan Party, without giving effect to subsequent changes in order to effect the foregoingvalue).
Appears in 2 contracts
Samples: Abl Credit Agreement (Community Health Systems Inc), Abl Credit Agreement (Community Health Systems Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell Hydrocarbons and other inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ax) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (By) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), ) and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fz) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage Business Investments in any Permitted Reorganizationaccordance with Section 6.04.
(b) Make Engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) involves the sale, transfer, lease or other disposition of Hydrocarbon Interests for consideration that consists of Hydrocarbon Interests, a combination of Hydrocarbon Interests and cash or a combination of Hydrocarbon Interests, cash and a commitment of the transferee to bear a portion of costs otherwise attributable to the remaining interest of the Borrower or the relevant Subsidiary in the Hydrocarbon Interest that was the subject of the sale, transfer, lease or other disposition or (y) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) other than in the case of the Asset Sale specified on Schedule 6.05(b), the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) shall not exceed (i) $20,000,000 10,000,000 in any fiscal year or (ii) $25,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Atp Oil & Gas Corp), Second Lien Credit Agreement (Atp Oil & Gas Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section 6.05 shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)consideration, (Ciii) the merger or consolidation of any Foreign Subsidiary may merge that is not a Subsidiary Loan Party into or consolidate with any other Foreign Subsidiary, Subsidiary that is not a Subsidiary Loan Party or (Div) the liquidation or dissolution or change in form of entity of any Subsidiary may be liquidated, wound up (other than the Borrower) if the Borrower determines in good faith that such liquidation or dissolved, or all or any part dissolution is in the best interests of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party shall be made in compliance with Section 6.07; provided, further, that the aggregate gross proceeds of sales, transfers, leases or other dispositions made outside the ordinary of business by Loan Parties to Subsidiaries may make Permitted Acquisitions and that are not Subsidiary Loan Parties in reliance upon this paragraph (Gc) Holdings and the Subsidiaries may engage shall not exceed, in any Permitted Reorganization.fiscal year of the Borrower, $10.0 million;
(bd) Make any Asset Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed exceed, in any fiscal year of the Borrower, the greater of $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted 50.0 million and 4.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements are required to be delivered pursuant to Section 6.06(a5.04; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(vh) any merger or consolidation in connection with a transaction permitted pursuant Permitted Business Acquisition; provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary in the ordinary course of business;
(j) sales, transfers, abandonment, dedication to Section 6.04the public, or other dispositions of United States Patent Nos. 6,480,304, 6,496,206, 6,009,442 and 6,262,732 or of intellectual property that is determined by the management of the Borrower to be no longer useful or necessary to the operation of the business of the Borrower and the Subsidiaries; and
(vik) any sales, leases or other Asset Sale dispositions of inventory of the Borrower and the Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and the Subsidiaries; Notwithstanding anything to the contrary contained in this Section 6.05 above, (xi) no sale, transfer or other disposition of assets in excess of $2.5 million shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for consideration fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% of which is cash, (y) such cash consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors no sale, transfer or other similar governing body disposition of the entity making such dispositionassets (other than a Permitted Asset Swap) in excess of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) $2.5 million shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions paragraph (g) of this Section 6.05 with respect to unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (ii) and (iii), the sale amount of any secured Indebtedness or other Indebtedness of a Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to that is not a Loan PartyParty (as shown on the Borrower's most recent balance sheet or in the notes thereto) or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 2 contracts
Samples: Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger or consolidation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 6.07 and shall not in the aggregate exceed, in any Foreign Subsidiary may merge into fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease or consolidate with any other Foreign Subsidiarydisposition for which financial statements have been delivered pursuant to Section 5.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Dividends permitted by Section 6.06 and purchases and leases permitted by Section 6.10;
(Df) any Subsidiary may be liquidated, wound up or dissolved, or all or any the sale of defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted under paragraph by this Section 6.05 (aor required to be included in this clause (g) abovepursuant to Section 6.05(c)); provided, except:
that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased leased, licensed or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed exceed, in any fiscal year of the Borrower, the greater of (x) $10,000,000;
105 million and (y) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (ii) salesno Default or Event of Default exists or would result therefrom, transfers or other dispositions set forth in Schedule 6.05;
(iii) with respect to any Permitted Reorganization;
such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (iv) Restricted Payments permitted pursuant to the Net Proceeds thereof are applied in accordance with Section 6.06(a2.11(b);
(vh) Permitted Business Acquisitions (including any merger or consolidation in order to effect a transaction permitted Permitted Business Acquisition); provided, that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 6.042.11(b); and
(vim) any exchange of assets for services and/or other Asset Sale assets of comparable or greater value; provided, that (xi) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value in excess of $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value in excess of $20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Borrower, the greater of $105.0 million and 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b). Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of which assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is cash, (y) such consideration is for at least equal 75% cash consideration; provided that the provisions of clause (ii) shall not apply to the any individual transaction or series of related transactions involving assets with a fair market value of the less than $10.0 million or to other transactions involving assets being sold, transferred, leased or disposed of and (z) the with a fair market value of not more than the greater of $45.0 million and 3.0% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (determined iii), (a) the amount of any secured Indebtedness or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in good faith the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the board transferee of directors any such assets shall be deemed to be cash and (b) any notes or other similar governing body obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Partycash received) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 2 contracts
Samples: Credit Agreement (Verso Sartell LLC), Credit Agreement (Verso Paper Holdings LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or Dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all of any division, unit or any substantial part of the assets business of any other person, except that this Section 6.05 shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell Disposition of inventory or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for Fair Market Value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or determined in good faith by the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or of any of the Subsidiaries, (iv) assignments by the Borrower and any Subsidiary in connection with insurance arrangements of their rights and remedies under, and with respect to, the Business Combination Agreement in respect of any breach by the Company of its representations and warranties set forth therein, (v) the Disposition of Permitted Investments in the ordinary course of business or (vi) any dispositions of Investments in joint ventures to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(b) if at the time thereof and immediately after giving effect thereto thereafter no Event of Default or Default shall have occurred and be continuing or would result therefrom, (Ai) the merger or consolidation of any wholly owned Subsidiary may merge into or with the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Domestic Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration (provided unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such transaction liquidation, change in form or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party)Party if the merging, consolidating or amalgamating Subsidiary was a Loan Party (Cunless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.11 or (vi) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiaryperson in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05;
(c) Dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise), provided, that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance of this clause (Dc) shall be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) (i) Investments permitted by Section 6.04, Permitted Liens and Dividends permitted by Section 6.06 and (ii) any Subsidiary may be liquidated, wound up Disposition made pursuant to the Business Combination Agreement or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, connection with the Transactions;
(Ef) any Foreign Subsidiary may be liquidated, wound up swap of assets in exchange for services or dissolved, other assets used or all useful in a Similar Business of comparable or any part greater value or usefulness to the business of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) aboveas a whole, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (as determined in good faith by the board management of directors the Borrower, which in the event of a swap with a Fair Market Value (as determined in good faith by the Borrower) in excess of (x) $10,000,000 shall be evidenced by a certificate from a Responsible Officer of the Borrower and (y) $20,000,000 shall be set forth in a resolution approved in good faith by at least a majority of the Board of Directors of the Borrower;
(g) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) Dispositions of assets not otherwise permitted by this Section 6.05; provided that the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby;
(i) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that, following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity;
(j) licenses of Intellectual Property and software that are either (i) entered into in the ordinary course of business or, (ii) not material to the conduct of any of the business lines of the Borrower and the Subsidiaries and the value of which does not constitute a material portion of the assets of the Borrower and the Subsidiaries, taken as a whole, and which do not materially interfere with the ordinary course of conduct of the business of the Borrower or any of its Subsidiaries;
(k) the lease, assignment or sublease of any real or personal property in the ordinary course of business;
(l) Dispositions of inventory, equipment or other similar governing body assets (excluding Equity Interests, assets constituting a business division, unit, line of business, all or substantially all of the entity making such dispositionassets of any Material Subsidiary, Sale and Lease-Back Transactions and receivables) of the Borrower and the Subsidiaries determined in good faith by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries;
(m) any sale of Equity Interests in, or other securities of, an Unrestricted Subsidiary;
(n) the purchase and Disposition (including by capital contribution) of (i) Securitization Assets including pursuant to Permitted Securitization Financings and (ii) any other Securitization Assets subject to Liens securing Permitted Securitization Financing;
(o) to the extent constituting a Disposition, any termination, settlement or extinguishment of Swap Obligations; and
(p) any sale, transfer or disposition of Claims Administration Investments; provided that the Net Proceeds thereof received by any Loan Party are used to make additional Claims Administration Investments or to repay any outstanding Claims Administration Indebtedness prior to being used for any other purpose. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no Disposition of assets under Section 6.05(h) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for Fair Market Value (as determined in good faith by the Borrower), or if not for Fair Market Value (as determined in good faith by the Borrower), the shortfall is permitted as an Investment under Section 6.04, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or Permitted Investments; provided that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a Fair Market Value (as determined in good faith by the Borrower) of less than $5,000,000; provided, further, that, for purposes of this clause (ii), (a) the amount of any liabilities of the Borrower or any Subsidiary (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) (other than liabilities that are by their terms subordinated to the Loan Obligations) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash within 180 days of the receipt thereof (to the extent of the cash received), (c) any Designated Noncash Consideration received by the Borrower or any of its Subsidiaries in such Disposition having an aggregate Fair Market Value (as determined in good faith by the Borrower), taken together with all assets sold, transferred, leased or disposed of other Designated Noncash Consideration received pursuant to this clause (vic) shall since the Closing Date that is at the time outstanding, not to exceed the greater of $20,000,000 65,000,000 and 0.19 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (with the Fair Market Value (as determined in good faith by the aggregateBorrower) of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that Holdings, the Borrower and each other Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale and (e) consideration consisting of Indebtedness of the Borrower (other than Indebtedness that is subordinated in right of payment to the Loan Obligations) received from persons who are not Holdings, the Borrower or a Subsidiary in connection with the Asset Sale and that is canceled. To the extent any Subsidiary or Collateral is sold as Disposed of in a transaction permitted by this Section 6.05, 6.05 to any person other than the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralLoan Party, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold Disposed of free and clear of the Liens created by the Security DocumentsLoan Documents (provided that, for the avoidance of doubt, with respect to any Disposal consisting of an operating lease or license, the underlying property retained by the Borrower or such Subsidiary Loan Party will not be so released), and the Agents Collateral Agent shall take all take, and is hereby authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Exela Technologies, Inc.), First Amendment to First Lien Credit Agreement (Exela Technologies, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of Intermediate Holdings, the U.S. Borrower or any SubsidiarySubsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the U.S. Borrower or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the U.S. Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger of Intermediate Holdings (or the surviving entity of any wholly owned merger of Intermediate Holdings and Holdings) with the U.S. Borrower, (ii) the merger of Intermediate Holdings (or the surviving entity of any merger of Intermediate Holdings and the U.S. Borrower) with Holdings, (iii) the merger of any Subsidiary may merge into the a Borrower in a transaction in which the such Borrower is the surviving corporation, (Biv) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (iii) and (iv), no person other than a Borrower or Subsidiary Loan Party receives any consideration, (v) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (vi) the liquidation or dissolution of any Subsidiary (other than a Borrower) if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower or a wholly owned Subsidiary receives any consideration (upon voluntary liquidation or otherwise); provided that if any party to any such transaction is sales, transfers, leases or other dispositions by a Loan PartyParty to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) investments expressly permitted by Section 6.04;
(f) the purchase, sale or other transfer of accounts receivable and related assets pursuant to the Permitted Receivables Financing;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (other than the note evidencing or any right to payment in respect of the Intermediate Holdings Loan or the Xxxxx Loan), provided that such sale does not constitute a sale of all or substantially all the assets of Holdings, Intermediate Holdings, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the U.S. Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) aboveSubsidiaries, except:taken as a whole;
(i) any merger or consolidation in connection with a transaction referred to in Section 6.03; Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary; and
(j) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a Subsidiary in the ordinary course of business. Notwithstanding anything to the contrary contained above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate Holdings (or the surviving entity in any merger of Intermediate Holdings and the U.S. Borrower pursuant to Section 6.05(b)), unless and until such time as Intermediate Holdings (or such surviving entity) is merged with Holdings pursuant to Section 6.05(b), (ii) Intermediate Holdings (or the surviving entity in any merger of Intermediate Holdings and Holdings pursuant to Section 6.05(b)) shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, unless and until such time as Intermediate Holdings (or such surviving entity) is merged with the U.S. Borrower pursuant to Section 6.05(b), (iii) each Foreign Subsidiary Borrower and Xxxxx shall be a Wholly Owned Subsidiary, (iv) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (v) no sale, transfer or other disposition of assets shall be permitted by paragraphs (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (vi) no sale, transfer or other disposition of assets in excess of $250,000,000 shall be permitted by paragraph (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration; ; provided, however, that for purposes of clause (vi) of this sentence, (A) the assumption by the transferee of liabilities associated with the assets subject to any sale, transfer or other disposition shall not be deemed to be consideration paid in respect of such assets and (B) any Designated Non-Cash Consideration received by the U.S. Borrower or any Subsidiary in respect of any such sale, transfer or other disposition (valued at the time of receipt thereof, and without giving effect to any write-downs or write-offs thereof) having an aggregate fair market value of value, taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration previously applied pursuant to this clause (iB) shall less the Net Proceeds of any subsequent sale of any such Designated Non-Cash Consideration, not to exceed $10,000,000;
the greater of (iix) sales2.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfers transfer or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted disposition for which financial statements have been delivered pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, 5.04 and (y) $100,000,000, shall be deemed to constitute “cash consideration” received in respect of such consideration is at least equal to the fair market value of the assets being soldsale, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors transfer or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 2 contracts
Samples: Credit Agreement (TRW Automotive Holdings Corp), Credit Agreement (TRW Automotive Holdings Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (iiA) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (B) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (C) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger or consolidation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 6.07 and shall not in the aggregate exceed, in any Foreign Subsidiary may merge into fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease or consolidate with any other Foreign Subsidiarydisposition for which financial statements have been delivered pursuant to Section 5.04;
(d) Sale and Lease Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Dividends permitted by Section 6.06 and purchases and leases permitted by Section 6.10;
(Df) any Subsidiary may be liquidated, wound up or dissolved, or all or any the sale of defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted under paragraph by this Section 6.05 (aor required to be included in this clause (g) abovepursuant to Section 6.05(c)); provided, except:
that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased leased, licensed or otherwise disposed of in reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Borrower, the greater of (x) $105 million and (y) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to this clause Section 5.04, (ii) no Default or Event of Default exists or would result therefrom and (iii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall not exceed $10,000,000be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(iii) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(j) sales, transfers leases or other dispositions set forth of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in Schedule 6.05the operation of the business of the Borrower or any of the Subsidiaries;
(iiik) acquisitions and purchases made with the proceeds of any Asset Sale; provided that such Investment constitutes a Permitted ReorganizationBusiness Acquisition or the acquisition of assets useful in the business of the Borrower and the Subsidiaries;
(ivl) Restricted Payments permitted the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04Permitted Receivables Financings; and
(vim) any exchange of assets for services and/or other Asset Sale assets of comparable or greater value; provided, that (xi) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value in excess of $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value in excess of $20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Borrower, the greater of $105.0 million and 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(b), (B) no Default or Event of Default exists or would result therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of which assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is cash, (y) such consideration is for at least equal 75% cash consideration; provided that the provisions of clause (ii) shall not apply to the any individual transaction or series of related transactions involving assets with a fair market value of the less than $10.0 million or to other transactions involving assets being sold, transferred, leased or disposed of and (z) the with a fair market value of not more than the greater of $45.0 million and 3.0% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (determined iii), (a) the amount of any secured Indebtedness or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in good faith the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the board transferee of directors any such assets shall be deemed to be cash and (b) any notes or other similar governing body obligations or other securities or assets received by the Borrower or such Subsidiary from the transferee that are converted by the Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Partycash received) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 2 contracts
Samples: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into Merge, amalgamate or consolidate with or into any other person, or permit any other person to merge into merge, amalgamate or consolidate with or into it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) as part of any Asset Sale all or substantially all of the assets of a Loan Party (whether now owned or hereafter acquired) of the Borrower or less than all or substantially all of the Equity Interests of any SubsidiaryLoan Party (in each case, whether now owned or hereafter acquired), or purchase, lease liquidate or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other persondissolve, except that (a) the Parent Borrower may merge, amalgamate or consolidate with any person provided that (i) the Borrower and any Subsidiary may purchase and sell inventory no Change in the ordinary course of business and Control occurs, (ii) if at the time thereof and immediately after giving effect thereto to any such proposed transaction no Default or Event of Default or Default shall have occurred would exist, and be continuing (Aiii) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Parent Borrower is the surviving corporationentity, (Bb) the Parent Borrower may merge or amalgamate with any of its wholly owned Subsidiaries, provided that immediately after giving effect to any such proposed transaction no Default would exist and the Parent Borrower is the surviving entity, (c) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary (or, in order to consummate a Permitted Acquisition, any other person) in a transaction in which the surviving entity is a wholly owned Subsidiary and (except in the case of Permitted Acquisitions) no person other than the Borrower Borrowers or a wholly owned Subsidiary receives any consideration (consideration, provided that (i) other than with respect to any merger among the Parent Borrower and one or more wholly owned Subsidiaries and/or among wholly owned Subsidiaries of the Parent Borrower, the requirements of Section 6.04(i) are met with respect to such merger described in this clause (c) and (ii) if any party to any such transaction is merger described in this clause (c) shall involve a Loan Party, the surviving entity of such transaction merger shall be or become a Loan Party), Party and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (Dd) any Subsidiary of the Parent Borrower may be liquidated, wound up liquidate or dissolved, dissolve if the Parent Borrower determines in good faith that such liquidation or all or any part dissolution is in the best interests of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Parent Borrower and is not materially disadvantageous to the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationLenders.
(b) Make Engage in any Asset Sale not otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of of, and (zii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) after the Closing Date shall not exceed $20,000,000 7.5% of Consolidated Net Worth calculated on the date of incurrence as of the most recent fiscal quarter for which financial statements are available in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 2 contracts
Samples: Syndicated Facility Agreement (Civeo Corp), Syndicated Facility Agreement (Civeo Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, or liquidate or dissolve, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or with the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.09;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 6.07 and the aggregate gross proceeds of any Foreign Subsidiary may merge into such sales, transfers, leases or consolidate with other dispositions plus the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed ofof in reliance on clause (g) below, shall not exceed, in one transaction any fiscal year of the Borrower, the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such sale, transfer, lease or other disposition for which financial statements have been delivered pursuant to Section 5.04 (determined based on the balance sheet so delivered for such prior fiscal year);
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06;
(f) the sale or other disposition of defaulted receivables and the compromise, settlement and collection of receivables in the ordinary course of business or in bankruptcy or other proceedings concerning the other account party thereon and not as part of a series Permitted Securitization Financing;
(g) sales, transfers, leases, licenses or other dispositions of transactionsassets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, to Borrower or that (i) the aggregate gross proceeds (including noncash proceeds) of any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed of, of in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under reliance upon this paragraph (a) aboveg), except:
(i) in a transaction referred to in Section 6.03; provided that plus the aggregate fair market value gross proceeds of any or all assets sold, transferred, leased or otherwise disposed of to Subsidiaries that are not Loan Parties in reliance on clause (c) above, shall not exceed, in any fiscal year of the Borrower, the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such sale, transfer, lease, license or other disposition for which financial statements have been delivered pursuant to this clause Section 5.04 (i) shall not exceed $10,000,000;
determined based on the balance sheet so delivered for such prior fiscal year), (ii) salesno Default or Event of Default exists or would result therefrom, transfers or other dispositions set forth in Schedule 6.05;
(iii) with respect to any Permitted Reorganization;
such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (iv) Restricted Payments permitted pursuant to the Net Proceeds thereof are applied in accordance with Section 6.06(a2.11(b);
(vh) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a transaction permitted Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Subsidiary that is not a Loan Party, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to Section 6.04; and
(vi) any other Asset Sale the first proviso of paragraph (x) of the definition of “Net Proceeds”;
(l) the sale or other transfer of Securitization Assets or interests therein pursuant to a Permitted Securitization Financing;
(m) any exchange of assets for consideration services and/or other assets of comparable or greater value; provided, that (i) at least 7590% of which is cashthe consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (yii) such consideration is at least equal to in the fair market value event of the assets being sold, transferred, leased or disposed of and (z) the a swap with a fair market value (as determined in good faith by the board Borrower) in excess of directors $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance on this paragraph (m) shall not exceed, in any fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such exchange transaction for which financial statements have been delivered pursuant to Section 5.04 (determined based on the balance sheet so delivered for such prior fiscal year), (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other similar governing body obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the entity making consideration in respect of such dispositionsale or acquisition;
(o) [reserved];
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) any disposition of Permitted Investments in connection with the Arbitrage Programs;
(r) sales or other dispositions of Equity Interests in Existing Joint Ventures;
(s) any grant of a license or sublicense in the ordinary course of business under any Intellectual Property Rights or franchise rights; and
(t) the purchase and sale of assets in the ordinary course of the relocation services business of the Borrower or any Subsidiary. Notwithstanding anything to the contrary contained in this Section 6.05, (i) no sale, transfer or other disposition of assets shall be permitted by clause (g) or (m) of this Section 6.05 unless such disposition is for fair market value (as determined in good faith by the Borrower) and (ii) no sale, transfer or other disposition of assets in excess of $40.0 million shall be permitted by paragraph (d) or (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that for purposes of clause (ii), (a) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration received pursuant to this clause (vic) that is at that time outstanding, not to exceed $50.0 million at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall not exceed $20,000,000 in the aggregatebe deemed to be cash. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.056.05 to any person other than Holdings, the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 2 contracts
Samples: Term Loan Agreement (Realogy Group LLC), Term Loan Agreement (Realogy Group LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii1) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have has occurred and be is continuing or would result therefrom:
(Aa) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor;
(i) the merger, (B) consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party; and, in the case of each of the foregoing clauses (a) and (b), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;
(provided ii) the merger, consolidation or amalgamation of any Restricted Subsidiary that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary that is not a Loan Party;
(iii) any transfer of inventory among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(iv) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if a Responsible Officer of the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(v) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment so long as the continuing or surviving Person will be a Subsidiary Loan Party if the merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10; or
(vi) a merger or consolidation of the Borrower into a newly formed entity organized under the laws of the United States of America, any state thereof or the District of Columbia in connection with a Permitted Change of Control; provided that either the Borrower shall be the surviving entity of Person in such transaction or the Person surviving such transaction shall expressly assume, pursuant to an instrument reasonably satisfactory to the Administrative Agent, all liabilities and obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is party;
(2) any sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(i) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(ii) such sale, transfer or disposition is made for fair market value (as determined by a Loan PartyResponsible Officer of the Borrower in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(iii) any liabilities of the Borrower or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), (C) any Foreign Subsidiary may merge into or consolidate other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, respect to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the applicable disposition and for which the Borrower and the Restricted Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage have been validly released by all applicable creditors in any Permitted Reorganization.writing;
(bA) Make any Asset Sale otherwise permitted under paragraph securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (ato the extent of the cash received) above, except:within 180 days following the closing of the applicable disposition; and
(iB) any Designated Non-Cash Consideration received in a transaction referred to in Section 6.03respect of such disposition; provided that the aggregate fair market value of all assets soldsuch Designated Non-Cash Consideration, transferredas determined by a Responsible Officer of the Borrower in good faith, leased or disposed of taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iiii) shall that is then outstanding, does not exceed the greater of (A) $10,000,000;
40.0 million and (iiB) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 7510.25% of which Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is cashreceived, (y) such consideration is at least equal to with the fair market value of each item of Designated Non-Cash Consideration being measured at the assets being sold, transferred, leased or disposed of time received and without giving effect to subsequent changes in value;
(za) the purchase and sale of inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) Sale and Lease-Back Transactions permitted by Section 6.03;
(5) Investments permitted by Section 6.04, (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition), provided, that, following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving corporation;
(6) Permitted Liens; and
(7) Restricted Payments permitted by Section 6.06;
(8) the sale or discount of overdue or defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(9) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(10) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary;
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral;
(13) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value (value, as determined by a Responsible Officer of the Borrower in good faith by the board faith, of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed more than $20,000,000 in the aggregate5.0 million. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.056.05 to any Person other than Holdings, the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralGuarantor, such Subsidiary or Collateral (unless sold to a Loan Party) shall will be sold free and clear of the Liens created by the Security Loan Documents, and the Agents shall take all Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing, in each case, in accordance with Section 10.18.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease assign, lease, sublease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the of its assets (whether now owned or hereafter acquired) when taken as a whole in combination with the other assets and properties of the Borrower or less than all the Equity Interests of any Subsidiaryand its Subsidiaries), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that Person except:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (iia) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing continuing, (Ai) any wholly owned Domestic Subsidiary of SSCC may merge into or consolidate with, liquidate or dissolve into, or sell, transfer, assign, lease, sublease or otherwise dispose of all or substantially all of its assets to, the Borrower in a transaction in which the Borrower is the surviving corporation, corporation and (Bii) any wholly owned Domestic Subsidiary of the Borrower may merge into or consolidate with, liquidate or dissolve into, or sell, transfer, assign, lease, sublease or otherwise dispose of all or substantially all of its assets to, any other wholly owned Domestic Subsidiary of the Borrower in a transaction in which the surviving entity is a wholly owned Domestic Subsidiary of the Borrower, and (iii) on or after the Stone Transaction Date, any Canadian Subsidiary may merge into or consolidate with or amalgamate with, liquidate or dissolve into, or sell, transfer, assign, lease, sublease or otherwise dispose of all or substantially all of its assets to, SSC Canada or any other wholly owned Canadian Subsidiary in a transaction in which SSC Canada or any of its Canadian Subsidiaries is the surviving corporation (provided that SSC Canada shall be the surviving entity if it is a party to such transaction); provided that, in each case, (x) if any Person other than the Borrower or SSC Canada, as the case may be, or a wholly owned Domestic Subsidiary or wholly owned Canadian Subsidiary, as the case may be, receives any consideration, such transaction is also permitted by Section 7.04, and (y) in the event that the surviving entity would become a wholly owned Domestic Subsidiary or a wholly owned Canadian Subsidiary and has not previously become a Guarantor, the surviving entity shall, simultaneously with such merger or consolidation, comply with the requirements of Section 6.10 to the extent required by such Section 6.10;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, any wholly owned Foreign Subsidiary may merge into, amalgamate or consolidate with, liquidate or dissolve into, or sell, transfer, assign, lease, sublease or otherwise dispose of all or substantially all of its assets to, any other wholly owned Foreign Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and Foreign Subsidiary, provided that no person Person other than the Borrower a Loan Party or a wholly owned Foreign Subsidiary receives any consideration consideration;
(c) purchases of inventory, equipment and real property in the ordinary course of business;
(d) acquisitions constituting Consolidated Capital Expenditures permitted by Section 7.13;
(e) acquisitions, mergers and other transfers constituting Investments permitted by Section 7.04, provided that if the Borrower shall be the surviving corporation in any party to merger or consolidation between it and any such transaction other Person and that in any merger or consolidation involving a Subsidiary that is a Loan Party, the surviving entity of such transaction shall be is a Loan Party), ;
(C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Ff) the Borrower may contribute the properties and assets (other than the real property and any IRB-secured property) of the Brewton, Alabama mill, and may lease the real property and IRB-secured property of the Brewton, Alabama mill on a long-term basis and for nominal consideration, to JSC Newco pursuant to the Liability Management Transactions (it being agreed that such contribution and lease may be made or consummated notwithstanding the provisions of any Security Agreement or any Mortgage), provided that (A) the Borrower shall designate JSC Newco as a Material Subsidiary, and the Subsidiaries may make Permitted Acquisitions Borrower and JSC Newco shall comply with the applicable provisions of Section 6.10 (except that no leasehold mortgage shall be required with respect to such lease), and (GB) Holdings such lease is in form and substance satisfactory to the Senior Managing Agents;
(g) the Borrower may consummate the Stone Transaction so long as (i) on the Stone Transaction Date and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (ii) the representations and warranties set forth in Article IV and in the other Loan Documents shall be true and correct in all material respects on and as of the Stone Transaction Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, (iii) after giving pro forma effect thereto, the credit facilities (i.e., the Tranche A Term Loans, the Tranche B Term Loans and the Subsidiaries may engage Revolving Loans) provided for under this Agreement shall be rated not less than the ratings assigned by each of Standard & Poor's Ratings Services and Xxxxx'x Investors Service, Inc. immediately prior to (but without giving effect to) the Stone Transaction, (iv) the Loans shall rank pari passu with, and shall be Guaranteed and secured equally and ratably by, the same entities Guaranteeing and collateral securing the Stone Loans under the Stone Credit Agreement and, to the extent reasonably necessary or advisable to accomplish the same, the Collateral Agent (on behalf of the Lenders, the Administrative Agent, the Senior Managing Agents and the Fronting Bank) shall have entered into one or more intercreditor agreements with the collateral agent or other representative under the Stone Credit Agreement, (v) the surviving Person of such Stone Transaction, if not the Borrower, shall expressly assume the Borrower's obligations hereunder and under the other Loan Documents pursuant to one or more written agreements reasonably satisfactory to the Senior Managing Agents and the Borrower, and (vi) if as a result of the Stone Transaction the Borrower shall become a wholly owned subsidiary of Stone, Stone shall expressly assume and/or Guarantee the Borrower's obligations hereunder (without effecting a release of the Borrower from the same) pursuant to one or more written agreements reasonably satisfactory to the Senior Managing Agents. On and after the consummation of any Stone Transaction described in any Permitted Reorganization.
clause (bv) Make any Asset Sale otherwise permitted under paragraph or (avi) above, except:references in this Agreement and the other Loan Documents to the Borrower and its Subsidiaries shall, unless the context otherwise requires, be deemed to refer to such surviving Person and its subsidiaries (in the case of clause (v)) or Stone and its subsidiaries (in the case of clause (vi));
(h) in connection with the Acquisition; and
(i) in a transaction referred to in on or after the Stone Transaction Date, acquisitions permitted by Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i7.05(g) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingStone Credit Agreement.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (of, in one transaction or in a series of transactions) , all or substantially all the assets (any substantial part of its assets, whether now owned or hereafter acquired) acquired (other than assets of the GrafTech constituting an Unrestricted Subsidiary), or any Capital Stock of a Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) this Section shall not prohibit: the Borrower and any Subsidiary may purchase and sell sale of inventory or license of intellectual property in the ordinary course of business and (ii) by any Subsidiary, the sale of used or surplus equipment by any Subsidiary in the ordinary course of business, the acquisition of any asset of any person in the ordinary course of business or any purchase or sale of Permitted Investments in the ordinary course of business; if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationcontinuing, (Bi) the merger of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Wholly Owned Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Subsidiary (which shall be a Domestic Subsidiary if the non-surviving person shall be a Domestic Subsidiary, a Guarantor if the non-surviving person shall be a Guarantor (and a Loan Party that is not an Excluded Foreign Loan Party if the non-surviving person shall be a Loan Party that is not an Excluded Foreign Loan Party)), and no person other than GrafTech or a Wholly Owned Subsidiary receives any consideration, or (ii) the Borrower merger into or with a non-Wholly Owned Subsidiary of any person that is a wholly owned subsidiary of such non-Wholly Owned Subsidiary receives any consideration (provided that if any party to any such in a transaction is a Loan Party, in which the surviving entity is a Subsidiary in which GrafTech’s aggregate equity ownership percentage is no less than it was in such non-Wholly Owned Subsidiary immediately prior the effectiveness of such transaction merger (which shall be a Domestic Subsidiary if the non-surviving person shall be a Domestic Subsidiary, a Guarantor if the non-surviving person shall be a Guarantor (and a Loan Party that is not an Excluded Foreign Loan Party if the non-surviving person shall be a Loan Party that is not an Excluded Foreign Loan Party)), and no person other than GrafTech, a Wholly Owned Subsidiary or such non-Wholly Owned Subsidiary receives any consideration; Sale and Lease-Back Transactions permitted by Section 6.03; Investments permitted by Section 6.04; subject to Section 6.07 and to compliance with the Loan Party Transfer Restriction (with each sale, lease or other transfer being deemed to be an Investment in the amount of the fair market value of the asset subject to such sale, lease or transfer for purposes of determining compliance with the Loan Party Transfer Restriction), sales, leases or transfers (i) from any Subsidiary to a domestic Wholly Owned Subsidiary that is a Guarantor, (ii) from any Foreign Subsidiary that is not a CFC (other than any Loan Party that is not an Excluded Foreign Loan Party) to any Foreign Wholly Owned Subsidiary that is not a CFC; (iii) from any Foreign Subsidiary that is a CFC to any Foreign Wholly Owned Subsidiary; (iv) constituting Permitted Subsidiary Transfers; or (v) constituting Permitted Subsidiary Investments made in reliance on Section 6.04(d), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiaryj), (Dk), (l) or (m); [reserved]. sales, leases or other dispositions of equipment, inventory, intellectual property or other assets of the Subsidiaries determined by the Board of Directors or senior management of GrafTech to be no longer useful or necessary in the operation of the business of GrafTech and the Subsidiaries; any Engineered Solutions Disposition; sales or other dispositions by any Subsidiary may be liquidatedof assets (other than receivables, wound up except to the extent disposed of incidentally in connection with a sale or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale other disposition otherwise permitted under paragraph (a) abovehereby), exceptincluding Capital Stock of Subsidiaries, after the Third Amendment Effective Date for consideration in an aggregate amount during the period after the Third Amendment Effective Date not exceeding $25,000,000; provided, that:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers each such sale or other dispositions set forth disposition shall be for a consideration determined in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant good faith by the Board of Directors or senior management of GrafTech to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is be at least equal to the fair market value (if any) thereof;
(ii) the aggregate amount of all non-cash consideration included in the assets being sold, transferred, leased proceeds of any such sale or disposed other disposition may not exceed 25% of and (z) the fair market value of such proceeds; provided, however, that obligations of the type referred to in paragraphs (determined a) or (e) of the definition of “Permitted Investments” shall be deemed not to be non-cash proceeds if such obligations are promptly sold for cash and the proceeds of such sale are included in good faith by the board calculation of directors Net Proceeds from such sale; and
(iii) no Default or Event of Default shall have occurred and be continuing immediately prior to or after such sale or other similar governing body disposition. Notwithstanding any other provision herein, no sale may be made of the entity making such dispositionCapital Stock of (x) Holdings, Finance, Luxembourg Parent, Luxembourg Holdco, Swissco or GrafTech International Holdings or (y) any other Subsidiary, except in connection with the sale of all assets soldthe outstanding Capital Stock of such Subsidiary that is held by GrafTech or any other Subsidiary; provided, transferredhowever, leased that a sale or disposition of less than all the Capital Stock of a Subsidiary may be made if (1) such Subsidiary is not a Loan Party (or, if no Default or Event of Default exists or will exist immediately after giving effect to such sale or disposition, such Subsidiary is an Excluded Foreign Loan Party), (2) if the Capital Stock of such Subsidiary was pledged pursuant to a Pledge Agreement, the Capital Stock of such Subsidiary not sold or otherwise disposed of pursuant shall remain subject to this clause the Lien of a Pledge Agreement, and (vi3) such sale or other disposition of Capital Stock shall not exceed $20,000,000 be treated as an acquisition of the remaining Capital Stock for purposes of Section 6.04 and shall be permitted under Section 6.04(j), (k), (l) or (m) and be in compliance with the aggregateLoan Party Transfer Restriction. To Notwithstanding the extent foregoing, no transaction may be effected in reliance on any Subsidiary of paragraphs (a) through (i) above if such transaction would constitute or Collateral is sold as permitted by this Section 6.05result in an Excess Foreign Transfer. Notwithstanding the foregoing, no sale or other disposition of all or any substantial part of the assets included in GrafTech’s Engineered Solutions business segment, whether direct or through a sale or other disposition of Capital Stock of, or the Required Lenders a merger or all the Lendersother transaction involving, as applicableany entity or entities holding such assets, waive the provisions to any person that is not GrafTech or a Subsidiary may be effected in reliance on any provision of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral other than paragraph (unless sold to a Loan Partyh) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingabove.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that person or any division or business unit of any other person unless (i) the Borrower or any of its Restricted Subsidiaries, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of, and (ii) at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash equivalents; provided that (x) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Restricted Subsidiary may of the Borrower (other than liabilities that are by their terms subordinated to the Loans) that are assumed by the transferee of any such assets, (y) any notes or other obligations or other securities or assets received by the Borrower or such Restricted Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash within 180 days of receipt thereof (to the extent of the cash received) and (z) any Designated Non-Cash Consideration received by the Borrower or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value (as determined in good faith by the Borrower), taken together with all others Designated Non-cash Consideration received pursuant to this clause (z) that is at that time outstanding, not to exceed the greater of 3.0% of Consolidated Total Assets and $100 million at the time of the receipt of such Designated Non-Cash Consideration (with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), in each case, shall be deemed to be cash equivalents for the purposes of this Section 6.05; and provided, further, that this Section 6.05 shall not prohibit:
(a) (i) the purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge of the Borrower into or with the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary survivor and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)consideration, (Cii) the merger, consolidation or amalgamation of any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (Diii) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (iv) any Subsidiary may merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be liquidateda Subsidiary;
(c) sales, wound up transfers, leases or dissolvedother dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or all or any other dispositions by the Borrower to a Subsidiary in reliance on this paragraph (c) shall be made in compliance with Section 6.07;
(d) [Reserved];
(e) Sale and Leaseback Transactions permitted by Section 6.03;
(f) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bh) Make any Asset Sale sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted under paragraph by this Section 6.05 (aor required to be included in this clause (h) abovepursuant to Section 6.05(c)); provided, except:
that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets assets, sold, transferred, leased or otherwise disposed of in reliance under this paragraph (h) shall not exceed, in any fiscal year of the Borrower, the greater of (x) $200 million and (y) 6.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease or license or other disposition for which financial statements have been delivered pursuant to this clause Section 5.04 and (ii) no Default or Event of Default exists or would result therefrom;
(i) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Subsidiary, the surviving or resulting entity shall not exceed $10,000,000be a Wholly Owned Subsidiary;
(iij) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(k) sales, transfers leases or other dispositions set forth of inventory of the Borrower and the Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in Schedule 6.05the operation of the business of the Borrower or any of the Subsidiaries;
(iiil) Permitted Business Acquisitions and purchases of assets useful in the business of the Borrower and its Subsidiaries made within 18 months following any Permitted ReorganizationAsset Sale in an amount not to exceed the proceeds from such Asset Sale;
(ivm) Restricted Payments the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(n) any exchange of assets for services and/or other assets of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value in excess of $10 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value in excess of $25 million, such exchange shall have been approved by at least a majority of the Board of Directors of the Borrower; provided, further, that (A) no Default or Event of Default exists or would result therefrom and (B) the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (n) shall not exceed, in any fiscal year of the Borrower, the greater of $200 million and 6.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.045.04; and
(vio) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other Asset Sale obligation with or to a person (xother than the Borrower and the Subsidiaries) for consideration at least 75% from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of which is cash, (y) such consideration is at least equal to the fair market value acquisition and in each case comprising all or a portion of the assets being soldconsideration in respect of such sale or acquisition; provided, transferred, leased or disposed of and (z) that the fair market value (determined net investment in good faith by the board of directors or other similar governing body Equity Interests of the entity making Subsidiary would be permitted by Section 6.04 if made on the date of such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Restricted Subsidiary, or purchase, lease purchase or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other personPerson or division or line of business of such Person, except that (i) the Borrower and any Restricted Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A1) any wholly owned Wholly Owned Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B2) any wholly owned Wholly Owned Restricted Subsidiary may merge into or consolidate with any other wholly owned Wholly Owned Restricted Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Restricted Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C3) any Foreign Restricted Subsidiary may merge into or consolidate with dispose of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property assets (upon voluntary liquidation or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, otherwise) to the Borrower or any wholly-owned Subsidiaryother Restricted Subsidiary (which such recipient Restricted Subsidiary shall be a Loan Party if the disposing Restricted Subsidiary is a Loan Party), (E4) any Foreign Restricted Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, liquidate (other than in one transaction connection with a merger or a series consolidation which shall be governed by the other clauses of transactionsthis Section 6.05(a)) and distribute its assets ratably to its shareholders if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, to any Foreign Subsidiary, and (F5) the Borrower and the Restricted Subsidiaries may make Permitted Acquisitions and Permitted Acquisitions (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationMajority), including by means of mergers or consolidations.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which consists of cash (provided that any Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (b) that is at that time outstanding, not in excess of $75,000,000, shall be deemed to be cash, ) and (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingof.
Appears in 1 contract
Samples: Credit Agreement (Huntington Ingalls Industries, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other personPerson, or permit any other person Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all any Restricted Subsidiary or preferred equity interests of the Equity Interests of Borrower or any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other personPerson or a line of business of a Person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell inventory sale of inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of intellectual property, in each case in the ordinary course of business and by the Borrower or any of its Restricted Subsidiaries, (ii) the sale of any other asset in the ordinary course of business by the Borrower or any Restricted Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bii) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge of the Borrower into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, consolidation or amalgamation of any Restricted Subsidiary of the Borrower that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary of the Borrower that is not a Loan Party, (iv) the surviving liquidation, winding up or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if the Borrower determines in good faith that such transaction shall be a liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) the merger, consolidation or amalgamation of any Loan Party), (C) any Foreign Subsidiary may merge Party other than the Borrower into or consolidate with any other Foreign SubsidiaryLoan Party; provided that in the case of any such merger, consolidation or amalgamation of the Borrower into or with another Loan Party, the Borrower shall be the surviving entity;
(Dc) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary may of the Borrower that is not a Loan Party shall be liquidatedmade in compliance with Section 6.07; and provided, wound up further, that the aggregate gross proceeds of any sales, transfers, leases or dissolved, other dispositions by a Loan Party to a Subsidiary that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofleased in reliance upon paragraph (g) below shall not exceed, in one transaction or a series any fiscal year of transactionsthe Borrower, to Borrower or any wholly5.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-owned SubsidiaryBack Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Restricted Payments permitted by Section 6.06;
(Ef) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any the sale of defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) aboveby this Section 6.05; provided, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed in any fiscal year of the Borrower, when aggregated with any cash consideration received in respect of any Exchanges in such fiscal year, $10,000,00010.0 million; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(c); and provided, further, that after giving effect thereto, no Default or Event of Default shall have occurred;
(h) any merger or consolidation in connection with a Permitted Business Acquisition; provided, that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation, and (ii) salesinvolving a Restricted Subsidiary, transfers the surviving or other dispositions set forth in Schedule 6.05resulting entity shall be a Loan Party;
(iiii) licensing and cross-licensing arrangements involving any Permitted Reorganization;
(iv) technology or other intellectual property of the Borrower or any Restricted Payments permitted pursuant to Section 6.06(a);
(v) Subsidiary in a transaction permitted pursuant to Section 6.04the ordinary course of business; and
(vij) abandonment, cancellation or disposition of any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value intellectual property of the assets being soldBorrower in the ordinary course of business; and
(k) Exchanges, transferred, leased or disposed of and (z) provided that the fair market value (determined cash consideration received in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) any Exchanges shall not exceed $20,000,000 in any fiscal year of the aggregateBorrower, when aggregated with aggregate gross proceeds received in respect of transactions permitted by Section 6.05(g), U.S.$10.0 million; provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(c); and provided, further, that after giving effect thereto, no Default or Event of Default shall have occurred. To Notwithstanding anything to the extent contrary contained in Section 6.05 above, (i) the Borrower may, so long as no Event of Default shall have occurred and be continuing or would result therefrom, sell, grant or otherwise issue Equity Interests to members of management of the Borrower or any Subsidiary of the Borrower that is a Loan Party pursuant to stock option, stock ownership, stock incentive or Collateral is sold as similar plans, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section 6.056.05 (other than sales, transfers, leases or the Required Lenders other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, and (iii) no sale, transfer or all the Lendersother disposition of assets shall be permitted by paragraph (a), as applicable, waive the provisions (d) or (j) of this Section 6.05 with respect to unless such disposition is for at least 80% cash consideration and (iv) no sale, transfer or other disposition of assets in excess of U.S.$5.0 million shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 80% cash consideration; provided, that for purposes of clauses (iii) and (iv), the sale amount of any secured Indebtedness or other Indebtedness of a Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to of the Borrower that is not a Loan PartyParty (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, or liquidate or dissolve, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or with the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.09;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 6.07 and the aggregate gross proceeds of any Foreign Subsidiary may merge into such sales, transfers, leases or consolidate with other dispositions plus the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed ofof in reliance on clause (g) below, shall not exceed, in one transaction any fiscal year of the Borrower, the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such sale, transfer, lease or other disposition for which financial statements have been delivered 88 pursuant to Section 5.04 (determined based on the balance sheet so delivered for such prior fiscal year);
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06;
(f) the sale or other disposition of defaulted receivables and the compromise, settlement and collection of receivables in the ordinary course of business or in bankruptcy or other proceedings concerning the other account party thereon and not as part of a series Permitted Securitization Financing;
(g) sales, transfers, leases, licenses or other dispositions of transactionsassets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, to Borrower or that (i) the aggregate gross proceeds (including noncash proceeds) of any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed of, of in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under reliance upon this paragraph (a) aboveg), except:
(i) in a transaction referred to in Section 6.03; provided that plus the aggregate fair market value gross proceeds of any or all assets sold, transferred, leased or otherwise disposed of to Subsidiaries that are not Loan Parties in reliance on clause (c) above, shall not exceed, in any fiscal year of the Borrower, the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such sale, transfer, lease, license or other disposition for which financial statements have been delivered pursuant to this clause Section 5.04 (i) shall not exceed $10,000,000;
determined based on the balance sheet so delivered for such prior fiscal year), (ii) salesno Default or Event of Default exists or would result therefrom, transfers or other dispositions set forth in Schedule 6.05;
(iii) with respect to any Permitted Reorganization;
such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (iv) Restricted Payments permitted pursuant to the Net Proceeds thereof are applied in accordance with Section 6.06(a2.11(b);
(vh) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a transaction permitted Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Subsidiary that is not a Loan Party, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to Section 6.04; and
(vi) any other Asset Sale the first proviso of paragraph (x) of the definition of “Net Proceeds”;
(l) the sale or other transfer of Securitization Assets or interests therein pursuant to a Permitted Securitization Financing;
(m) any exchange of assets for consideration services and/or other assets of comparable or greater value; provided, that (i) at least 7590% of which is cashthe consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (yii) such consideration is at least equal to in the fair market value event of the assets being sold, transferred, leased or disposed of and (z) the a swap with a fair market value (as determined in good faith by the board Borrower) in excess of directors or other similar governing body $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the entity making Borrower with respect to such dispositionfair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets sold, transferred, leased or disposed of pursuant to exchanged in reliance on this clause paragraph (vim) shall not exceed $20,000,000 exceed, in any fiscal year of the aggregate. To Borrower, 5.0% of Consolidated Total Assets as of the extent any Subsidiary end of the fiscal year ended immediately prior to the date of such exchange transaction for which financial statements have been delivered pursuant to Section 5.04 (determined based on the balance sheet so delivered for such prior fiscal year), (B) no Default or Collateral is sold as permitted by this Section 6.05Event of Default exists or would result therefrom, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 (C) with respect to any such exchange with aggregate gross consideration in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(o) [reserved];
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) any disposition of Permitted Investments in connection with the Arbitrage Programs;
(r) sales or other dispositions of Equity Interests in Existing Joint Ventures;
(s) any grant of a license or sublicense in the ordinary course of business under any Intellectual Property Rights or franchise rights; and
(t) the purchase and sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear assets in the ordinary course of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense relocation services business of the applicable Loan Party, in order to effect the foregoing.Borrower or any Subsidiary. 90
Appears in 1 contract
Samples: Term Loan Agreement (Anywhere Real Estate Group LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease lease, or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets of the Parent or any other Credit Party (whether now owned or hereafter acquired) or any capital stock of any Subsidiary of the Borrower or less than all the Equity Interests of any SubsidiaryParent (except as permitted by SECTION 8.5(b), below), or purchase, lease lease, or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that (i) the Borrower Parent and any Subsidiary of its Subsidiaries may purchase and sell inventory in the ordinary course of business and business, (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ax) any wholly owned Subsidiary of the Parent may merge into the Borrower Parent in a transaction in which the Borrower Parent is the surviving corporation, corporation and (By) any wholly owned Subsidiary of the Parent (other than the Company) may merge into or consolidate with any other wholly owned Subsidiary of the LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT 45 Parent in a transaction in which the surviving entity is a wholly owned Subsidiary of the Parent (and a Credit Party, if the merged Subsidiary was a Credit Party) and no person Person other than the Borrower Parent or a wholly owned Subsidiary of the Parent receives any consideration consideration, (provided that if iii) the Parent and its Subsidiaries may make Permitted Acquisitions (including by way of merger of a Person or Persons into the Parent or any party to any such transaction is a Loan Party, Subsidiary of the surviving entity of such transaction shall be a Loan PartyParent), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (Div) any Subsidiary of the Parent (other than the Company) may be liquidatedliquidated if the assets and liabilities of such Subsidiary have been (or as a result of such liquidation are) assigned to and assumed by the Parent or another Subsidiary of the Parent (which must be a Credit Party if the liquidated Subsidiary is a Credit Party) in a manner permitted hereunder, wound up or dissolved(v) any Credit Party (other than the Company and the Parent) may sell, transfer, lease, or all or any part otherwise dispose of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, (in one transaction or a series of transactions) all or substantially all of the assets of such Credit Party to another Credit Party, to Borrower and (vi) the Parent or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions sell Program Receivables to Finsub, and (G) Holdings and Finsub may sell Program Receivables pursuant to the Subsidiaries may engage in any Permitted ReorganizationReceivables Program Documentation.
(b) Make With respect to the Parent, engage in any Asset Sale otherwise permitted under paragraph (aSECTION 8.5(a) above, except:
unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value (as certified by a Responsible Officer of the assets being soldParent or, transferred, leased or disposed in the case of and (z) the an asset with a fair market value (in excess of $20,000,000, determined in good faith by the board of directors or other similar governing body of the entity making such dispositionParent) of the assets being sold, transferred, leased, or disposed of and (iii) the fair market value of all assets sold, transferred, leased leased, or disposed of pursuant to this clause (viSECTION 8.5(b) shall not exceed (x) $20,000,000 50,000,000 in any fiscal year or (y) $150,000,000 in the aggregate from and after the August 8, 2000, provided that the limitations set forth in this CLAUSE (iii) shall not apply to the non-recourse factoring of accounts receivable by Foreign Subsidiaries, provided that the aggregate outstanding amount of accounts receivable (assuming each such account receivable remains outstanding for the number of days provided in the applicable invoice for non-delinquent payment) at any time which have been so factored since August 8, 2000 shall not exceed $50,000,000. Any Asset Sale by a Subsidiary of the Parent of all or substantially all of its assets and permitted by this SECTION 8.5 may be effected by a sale of all of the capital stock of such Subsidiary.
(c) With respect to the Parent, engage in any Asset Swap otherwise permitted by SECTION 8.5(a) unless all of the following conditions are met: (i) such exchange complies with the definition of Asset Swap, (ii) if the fair market value of the assets transferred exceeds $25,000,000, the board of directors of the Parent approves such exchange and the Parent secures an appraisal given by an unaffiliated third party in form and substance reasonably satisfactory to the Administrative Agent, (iii) the fair market value of all assets of the Parent and its Subsidiaries transferred pursuant to Asset Swaps since August 8, 2000 shall not exceed $100,000,000 in the aggregate. To , and (iv) the extent fair market value of any Subsidiary property or Collateral assets received is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect at least equal to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear fair market value of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingproperty or assets so transferred.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Flowserve Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of, or any division or line of business of, any other personPerson, except that this Section 10.5 shall not prohibit;
(ia) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business by the Borrower or any Subsidiary or the acquisition of facilities and equipment in the ordinary course of business;
(iib) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing
(Ai) the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationPerson, (B) or the merger or consolidation of any wholly owned Subsidiary may merge with and into or consolidate with any other wholly owned Subsidiary Wholly-Owned domestic Subsidiary, in each case in a transaction in which the surviving entity is a wholly owned Subsidiary and no person Person other than the Borrower or a wholly owned Subsidiary receives any consideration consideration; and
(provided that ii) the merger of any other Person with and into the Borrower or a Subsidiary if any party to any the Borrower or such transaction Subsidiary is a Loan Party, the surviving entity of and after giving effect to such transaction (A) the Consolidated Net Worth (as defined in the Senior Note Agreement) of the Borrower and its Subsidiaries shall be a Loan Party)not less than the Consolidated Net Worth (as defined in the Senior Note Agreement) of the Borrower and its Subsidiaries immediate, prior to such transaction, (B) substantially all the assets and business of the Borrower and its Subsidiaries shall be located in the United States and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and its Subsidiaries shall be in compliance, on a pro forma basis after giving effect to such transaction, with the covenants contained in Article IX recomputed as of the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries may make as if such transaction had occurred on the first day of each relevant period for testing such compliance, and the Borrower shall have delivered to the Administrative Agent an Officer's Compliance Certificate to such effect, together with all relevant financial information and calculations demonstrating such compliance;
(c) Permitted Business Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.other investments permitted by Section 10.4;
(bd) Make any Asset Sale otherwise permitted under paragraph sales, leases or other dispositions of equipment or real property of the Borrower or its Subsidiaries determined by the Board of Supervisors of the Borrower or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries;
(ae) abovesales, except:leases or other dispositions of property for consideration
(i) in a transaction referred to in at least 80% of which consists of cash and the remainder of which consists of investments permitted under Section 6.03; provided that the aggregate fair market value of all assets sold10.4, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;or
(ii) salesconsisting of cash and one or more Permitted Business Acquisitions which the Board of Supervisors of the Borrower shall have determined, transfers or other dispositions set forth as evidenced by a resolution thereof, have in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in the aggregate a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to fair market value not less than the fair market value of the assets property being sold, transferred, leased or otherwise disposed of and of; provided that (zA) the fair market value (determined in good faith by the board of directors or other similar governing body no issuance of the entity making Capital Stock (or of any warrant, right or option to purchase or otherwise acquire any such dispositionCapital Stock or any security convertible into or exchangeable for any such Capital Stock) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary may be made to any Person other than the Borrower or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.Wholly-Owned domestic Subsidiary
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions Acquisitions, including for purposes of this clause (F), by merger or consolidation of the Borrower or any Subsidiary with or into the Acquired Entity, provided that the Borrower shall be the surviving person of any such merger or consolidation involving the Borrower, and (G) Holdings and Subsidiaries of the Subsidiaries Borrower may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,00015,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 30,000,000 in the aggregate, with, for purposes of (y) and (z), such fair market value determined in good faith by the board of directors or other similar governing body of the entity making such sale, transfer, lease or disposition. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.056.05 and the Senior Secured Notes Indenture, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 and the requisite holders of the Senior Secured Notes waive any applicable prohibitions of the Senior Secured Notes Indenture with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Itc Deltacom Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any part of the assets (whether now owned or hereafter acquired) of the Borrower Holdings or any Restricted Subsidiary or less than all the Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all any Equity Interests in or any substantial part of the assets of any other person, except that except:
(ia) the Borrower and any Subsidiary may purchase and sell inventory purchases or other acquisitions of inventory, materials, equipment or other assets in the ordinary course of business and business;
(iib) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge of Holdings (other than a Borrower) into (or with) Holdings in which Holdings is the survivor, (ii) the merger, consolidation or amalgamation of any Borrower in a transaction in which the such Borrower is the surviving corporationsurvivor, (Biii) the merger, consolidation or amalgamation or consolidation of any wholly owned Subsidiary may merge (other than any Borrower) into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (ii) and (iii), no person other than the Borrower or a wholly owned Subsidiary the Loan Party receives any consideration consideration, (provided iv) the merger or consolidation of any Subsidiary that if is not a Loan Party into or with any party to any such transaction other Subsidiary that is not a Loan Party, or (v) any Subsidiary may merge, consolidate or amalgamate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving entity of such transaction person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.12;
(c) sales or other dispositions of assets described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) of the definition of “Asset Sale”;
(d) pursuant to Permitted Acquisitions;
(e) Investments made in accordance with Section 6.04 and Liens permitted by Section 6.02;
(f) any sale, transfer, lease or other disposition (including any Sale and Lease Back Transactions permitted by Section 6.03) of property; provided that (i) at the time of any such transaction, on a pro forma basis after giving effect thereto, no Event of Default shall have occurred and be continuing, or would result therefrom, and (ii) the consideration received for such property shall be not less than 75% in cash and/or Permitted Investments; provided however, for the purposes of this clause (f)(ii), each of the following shall be deemed to be cash: (A) the amount of any liabilities (as shown on Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (B) any Designated Non-Cash Consideration received in respect of such disposition having an aggregate fair market value as determined by the Borrowers in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause that is at that time outstanding, not in excess of the greater of (A) $25,000,000 and (B) 7.5% of the Consolidated EBITDA for the most recently ended four fiscal quarter period ending with a fiscal quarter for which financial statements are required to have been delivered pursuant to Section 5.04(b), at the time of receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, and (C) any Foreign Subsidiary may merge into non-cash proceeds received in the form of Indebtedness or consolidate with any other Foreign SubsidiaryEquity Interests are pledged to the Collateral Agent to the extent required under Section 5.12; provided further, (D) that no sale of the Equity Interests of any Subsidiary may be liquidated, wound up or dissolved, or made pursuant to this clause (f) except in connection with the sale of all or its outstanding Equity Interests that is held by Holdings and any other Subsidiary;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) the sale or other disposition of Revolving Facility First Lien Collateral (as defined in the ABL Intercreditor Agreement);
(i) any Restricted Subsidiary that is not a Loan Party may liquidate or dissolve into, and in connection therewith, transfer its businessassets and liabilities to, property Holdings or assets another Restricted Subsidiary if the board of directors of Holdings or HMHP determines in good faith that such liquidation or dissolution is in the best interests of Holdings and HMHP and is not materially disadvantageous to the Lenders; and
(j) any Restricted Subsidiary may be conveyedsell, soldtransfer, leased, transferred lease or otherwise disposed dispose of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property assets or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, business to any Foreign other Restricted Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000such transaction complies with Section 6.04 and Section 6.07;
(iik) sales, transfers the unwinding of any Hedging Agreement or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted Convertible Bond Hedge Transactions pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingits terms.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other person, or permit any other person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or Dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part substantially all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell Disposition of inventory in the ordinary course of business and by the Parent or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Parent or any Subsidiary or, with respect to operating leases, otherwise for Fair Market Value on market terms (as determined in good faith by the Lux Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Parent or any Subsidiary or (iv) the Disposition of Permitted Investments 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 or would result therefrom, (Ai) the merger, amalgamation or consolidation of any wholly owned Subsidiary may merge (other than any Borrower or the Cadence IP Licensee) with or into the a Borrower in a transaction in which the such Borrower is the surviving corporationsurvivor, (Bii) the merger, amalgamation or consolidation of any wholly owned Subsidiary may merge (other than any Borrower or the Cadence IP Licensee) with or into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a wholly owned Subsidiary Loan Party organized in a Qualified Jurisdiction and, in the case of each of clauses (i) and (ii), no person other than the a Borrower or a wholly owned Subsidiary Loan Party receives any consideration (provided unless otherwise permitted by Section 6.04), (iii) the merger, amalgamation or consolidation of any Subsidiary that if is not a Subsidiary Loan Party with or into any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than any Borrower) if (x) the Lux Borrower determines in good faith that such transaction shall be a Loan Partyliquidation, dissolution or change in form is in the best interests of the Parent and is not materially disadvantageous to the Lenders and (y) same meets the requirements contained in the proviso to Section 5.01(a), (Cv) any Foreign Subsidiary (other than any Borrower) may merge into merge, amalgamate or consolidate with any other Foreign Subsidiaryperson in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging, amalgamating or consolidating Subsidiary was a Loan Party (Dand organized in a Qualified Jurisdiction if the merging, consolidating or amalgamating subsidiary was a Loan Party organized in a Qualified Jurisdiction) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary (other than any Borrower) may be liquidatedmerge, wound up amalgamate or dissolved, or all or consolidate with any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, other person in one transaction or a series of transactions, order to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any effect an Asset Sale otherwise permitted under paragraph pursuant to this Section 6.05;
(ac) aboveDispositions to the Parent or a Subsidiary; provided, except:that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and Restricted Payments permitted by Section 6.06;
(f) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(g) other Dispositions of assets to persons other than the Parent and its Subsidiaries; provided, that (i) the Net Proceeds thereof, if any, are applied in accordance with Section 2.11(b) to the extent required thereby and (ii) any such Dispositions shall comply with the final sentence of this Section 6.05;
(h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving a Borrower, such Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with;
(i) leases, licenses or subleases or sublicenses of any real or personal property in a transaction referred to in Section 6.03; provided that the aggregate fair market value ordinary course of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000business;
(iij) sales, transfers Dispositions of inventory in the ordinary course of business or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% Dispositions or abandonment of which is cash, (y) such consideration is at least equal to the fair market value Intellectual Property of the assets being sold, transferred, leased or disposed of Parent and (z) the fair market value (its Subsidiaries determined in good faith by the board of directors or other similar governing body management of the entity making such dispositionLux Borrower to be no longer economically practicable to maintain or useful or necessary in the operation of the business of the Parent or any of the Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale or Recovery Event pursuant to clause (a) or (b) of all assets sold, transferred, leased or disposed the definition of “Net Proceeds”;
(l) the purchase and Disposition (including by capital contribution) of Permitted Receivables Facility Assets including pursuant to Qualified Receivables Facilities;
(m) any exchange or swap of assets (other than cash and Permitted Investments) for services and/or other assets (other than cash and Permitted Investments) of comparable or greater value or usefulness to the business of the Parent and the Subsidiaries as a whole, determined in good faith by the management of the Lux Borrower; and
(n) other transactions effected (including mergers, consolidations or acquisitions of “shell” entities) for the sole purpose of reincorporating or reorganizing the Parent or any Subsidiary (other than any Borrower) under the laws of the United States of America or any State thereof or the District of Columbia, Switzerland or any jurisdiction that is a member state of the European Union as of the Closing Date; provided that (i) the Lux Borrower shall have provided the Administrative Agent with reasonable advance notice of any transactions as described above in this clause (vin), (ii) subject to the Agreed Guarantee and Security Principles, the Lux Borrower shall ensure that, if the respective entity subject to any action described above was a Guarantor, the applicable reincorporated or reorganized entity shall be a Guarantor and shall grant a security interest in substantially all of those of its assets that constituted part of the Collateral immediately prior to such reincorporation or reorganization and (iii) the Administrative Agent shall have concluded (acting reasonably) that, after giving effect to any replacement guarantees and security to be provided pursuant to preceding clause (ii), such transactions are not adverse to the Lenders in any material respect (it being understood and agreed that such a reincorporation or reorganization into a jurisdiction as has been agreed by the Parent and the Administrative Agent prior to February 10, 2014 shall be permitted if the requirements of preceding clauses (i) and (ii) are satisfied). Notwithstanding anything to the contrary contained above, this Section 6.05 shall not exceed $20,000,000 in restrict, at any time, the aggregate. To sale of Unrestricted Margin Stock so long as any such sale meets the extent any Subsidiary or Collateral is sold as permitted by requirements of the last paragraph of this Section 6.05. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b) of Section 6.03, under Section 6.05(d), or pursuant to the Required Lenders immediately preceding sentence, shall in each case be permitted unless (i) such Disposition is for Fair Market Value, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or all the LendersPermitted Investments; provided, as applicable, waive that the provisions of this Section 6.05 clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with respect a Fair Market Value of less than $10,000,000 or to other transactions involving assets with a Fair Market Value of not more than $35,000,000 in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Parent’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Parent or such Subsidiary from the transferee that are converted by the Parent or such Subsidiary into cash within 180 days after receipt thereof (to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear extent of the Liens created cash received) and (c) any Designated Non-Cash Consideration received by the Security DocumentsParent or any of its Subsidiaries in such Disposition or any series of related Dispositions, having an aggregate Fair Market Value not to exceed the greater of $120,000,000 and 4.0% of Consolidated Total Assets when received (with the Agents shall take all actions reasonably requested by the applicable Loan Party, Fair Market Value of each item of Designated Non-Cash Consideration being measured at the sole cost time received and expense of the applicable Loan Party, without giving effect to subsequent changes in order to effect the foregoingvalue).
Appears in 1 contract
Samples: Incremental Assumption Agreement (Mallinckrodt PLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other person, or permit any other person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or Dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part substantially all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell Disposition of inventory in the ordinary course of business and by the Parent or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Parent or any Subsidiary or, with respect to operating leases, otherwise for Fair Market Value on market terms (as determined in good faith by a Financial Officer of a Primary Obligor), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Parent or any Subsidiary or (iv) the Disposition of Permitted Investments 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 or would result therefrom, (Ai) the merger, amalgamation or consolidation of any wholly owned Subsidiary may merge with or into the Borrower a Primary Obligor in a transaction in which the Borrower such Primary Obligor is the surviving corporationsurvivor, (Bii) the merger, amalgamation or consolidation of any wholly owned Subsidiary may merge with or into or consolidate with any other wholly owned Subsidiary Settlement Party in a transaction in which the surviving or resulting entity is or becomes a wholly owned Subsidiary Settlement Party organized in a Qualified Jurisdiction and, in the case of each of clauses (i) and (ii), no person other than the Borrower a Primary Obligor or a wholly owned Subsidiary Settlement Party receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Partyunless otherwise permitted by Section 6.04), (Ciii) the merger, amalgamation or consolidation of any Subsidiary that is not a Subsidiary Settlement Party with or into any other Subsidiary that is not a Subsidiary Settlement Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if (x) a Financial Officer of a Primary Obligor determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Parent and that such liquidation, dissolution or change in form is not materially disadvantageous to interests of the Opioid Trust (or its successors or assignees, in part or in whole) and (y) such liquidation, dissolution or change in form meets the requirements contained in the proviso to Section 5.01(a), (v) any Foreign Subsidiary may merge into merge, amalgamate or consolidate with any other Foreign Subsidiaryperson in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Settlement Party if the merging, amalgamating or consolidating Subsidiary was a Settlement Party (Dand organized in a Qualified Jurisdiction if the merging, consolidating or amalgamating Settlement Party was organized in a Qualified Jurisdiction) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.09 or (vi) any Subsidiary may be liquidatedmerge, wound up amalgamate or dissolved, or all or consolidate with any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, other person in one transaction or a series of transactions, order to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any effect an Asset Sale otherwise permitted under paragraph pursuant to this Section 6.05;
(ac) aboveDispositions to the Parent or a Subsidiary Settlement Party; provided, except:that any Dispositions by a Settlement Party to a Subsidiary that is not a Subsidiary Settlement Party in reliance on this clause (c) shall be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) (i) Investments permitted by Section 6.04, (ii) Permitted Liens, and (iii) Restricted Payments permitted by Section 6.06;
(f) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(g) other Dispositions of assets to persons other than the Parent and its Subsidiaries; provided, that any such Dispositions shall comply with the final three paragraphs of this Section 6.05;
(h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a transaction referred to in Section 6.03Permitted Business Acquisition); provided provided, that the aggregate fair market value of all assets soldfollowing any such merger, transferred, leased consolidation or disposed of amalgamation pursuant to this clause (ih) shall not exceed $10,000,000involving a Primary Obligor or a Subsidiary Settlement Party, a Primary Obligor or a Subsidiary Settlement Party (or a person that becomes a Subsidiary Settlement Party) is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with;
(iii) salesleases, transfers licenses or other dispositions set forth subleases or sublicenses of any real or personal property in Schedule 6.05the ordinary course of business;
(iiij) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) Dispositions of inventory in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% the ordinary course of which is cash, (y) such consideration is at least equal to the fair market value business or Dispositions or abandonment of Intellectual Property of the assets being sold, transferred, leased or disposed of Parent and (z) the fair market value (its Subsidiaries determined in good faith by the board management of directors a Primary Obligor to be no longer economically practicable to maintain or other similar governing body useful or necessary in the operation of the entity making such dispositionbusiness of the Parent or any of the Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale or Recovery Event pursuant to clause (a) or (b) of all assets sold, transferred, leased or disposed the definition of “Net Proceeds”;
(l) the purchase and Disposition (including by capital contribution) of Permitted Receivables Facility Assets including pursuant to Qualified Receivables Facilities;
(m) any exchange or swap of assets (other than cash and Permitted Investments) for services and/or other assets (other than cash and Permitted Investments) of comparable or greater value or usefulness to the business of the Parent and the Subsidiaries as a whole, determined in good faith by the management of a Primary Obligor; and
(n) other transactions effected (including mergers, consolidations or acquisitions of “shell” entities) for the sole purpose of reincorporating or reorganizing the Parent or any Subsidiary under the laws of the United States of America or any State thereof or the District of Columbia, Switzerland, the United Kingdom or any jurisdiction that is a member state of the European Union as of the Effective Date; provided that (i) a Primary Obligor shall have provided the Opioid Trust with reasonable advance notice of any transactions as described above in this clause (vin), (ii) if the respective entity subject to any action described above in this clause (n) was a Guarantor, the applicable reincorporated or reorganized entity shall be a Guarantor and (iii) the Opioid Trust shall have concluded (acting reasonably) that, after giving effect to any replacement guarantees to be provided pursuant to preceding clause (ii), such transactions are not adverse to the Opioid Trust (or any of its successors and assigns, in part or in whole) in any material respect (it being understood and agreed that such a reincorporation or reorganization into any Qualified Jurisdiction shall be permitted if the requirements of preceding clauses (i) and (ii) are satisfied). Notwithstanding anything to the contrary contained above, this Section 6.05 shall not exceed $20,000,000 in restrict, at any time, the aggregate. To sale of Unrestricted Margin Stock so long as any such sale meets the extent any Subsidiary or Collateral is sold as permitted by requirements of the last two paragraphs of this Section 6.05. Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b) of the proviso to Section 6.03, under Section 6.05(d), or pursuant to the Required Lenders immediately preceding paragraph, shall, in each case, be permitted unless (i) such Disposition is for Fair Market Value, and (ii) at least 75% of the proceeds of such Disposition (except if such Disposition is to a Settlement Party) consist of cash or all the LendersPermitted Investments; provided, as applicable, waive that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a Fair Market Value of less than $10,000,000 or to other transactions involving assets with a Fair Market Value of not more than $35,000,000 in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Parent’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Parent or such Subsidiary from the transferee that are converted by the Parent or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Parent or any of its Subsidiaries in such Disposition or any series of related Dispositions, having an aggregate Fair Market Value not to exceed the greater of $120,000,000 and a percentage of Consolidated Total Assets equal to the Applicable CTA Percentage when received (with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Promptly following the receipt by the Parent or any Subsidiary of Net Proceeds of any Disposition permitted pursuant to Section 6.05 6.05(g) or of Net Proceeds in respect of any Recovery Event (subject, in each case, to the terms set forth in the definition of “Net Proceeds”), the Parent or such Subsidiary shall apply such Net Proceeds, at its option, to repay, prepay, redeem or repurchase (or offer to do any of the foregoing) Indebtedness of the Parent or any of its Subsidiaries (to the extent outstanding); provided that (x) if the terms of all such Indebtedness permit the lenders thereunder to decline such application of proceeds and such lenders do so with respect to any portion of such Net Proceeds, the Parent and the Subsidiaries shall be entitled to retain such portion of the Net Proceeds and (y) the Parent and the Subsidiaries shall not have any obligations hereunder under the circumstances described in Section 2.09(d) of the Takeback Term Loan Credit Agreement (as in effect on the Effective Date). Notwithstanding anything to the contrary contained in this Agreement, promptly following the receipt by the Parent or any Subsidiary of Net Proceeds of any Disposition to persons other than the Parent and the Subsidiaries of, or in respect of any Recovery Event related to, (i) Mallinckrodt Enterprises Holdings, Inc. and its Subsidiaries (including, for the avoidance of doubt, its successors and assigns) or (ii) a material portion of the assets or businesses of such entities (including as a result of a merger, equity sale, or asset sale, but it being understood that the sale of inventory in the ordinary course of business does not constitute the Disposition of a material portion of their assets or businesses), the Parent and the Subsidiaries shall pay 50% of such Net Proceeds to the Opioid Trust (and its successors and assigns, in part or in whole, as applicable) (to the extent such payment may be made in compliance with the terms of any then-outstanding Indebtedness of the Parent and the Subsidiaries and to extent such Net Proceeds are not required to be otherwise applied in accordance with the terms of such Indebtedness), and the amount of such Net Proceeds actually paid to the Opioid Trust (and its successors and assigns, in part or in whole, as applicable) will be deemed to be a ratable repayment of the Opioid Deferred Cash Payments. Notwithstanding anything to the contrary contained in this Section 6.05 and, solely with respect to Sale and Lease-Back Transactions, Section 6.03, no Settlement Party may make any Disposition of Material Intellectual Property to any Subsidiary (other than another Settlement Party) or any Unrestricted Subsidiary; provided that nothing in this sentence shall prohibit any non-exclusive (other than exclusive distribution or other similar within a specified jurisdiction) license or sublicense of Material Intellectual Property to, or use of Material Intellectual Property by, any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingUnrestricted Subsidiary.
Appears in 1 contract
Samples: Opioid Deferred Cash Payments Agreement (Mallinckrodt PLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of the assets of the Borrower and its Subsidiaries, taken as a whole (whether now owned or hereafter acquired) of the Borrower ), or less than all the Equity Interests any Capital Stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory and scrap, obsolete, excess and worn out assets in the ordinary course of business and business, (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided provided, that if any party to any such transaction is involves a Loan PartyDomestic Subsidiary, the surviving entity of such transaction shall be a Loan Party), wholly owned Domestic Subsidiary and no person other than the Borrower or a wholly owned Domestic Subsidiary shall receive any consideration) and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up in a transaction in which the surviving entity is a Subsidiary and the value of the Borrower's direct or dissolved, indirect interest in such surviving entity immediately after such merger or all or any part consolidation is at least equal to the aggregate value of its businessdirect or indirect interest in the merging or consolidating Foreign Subsidiaries immediately prior to such merger or consolidation, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, and (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fiii) the Borrower and the Subsidiaries any Subsidiary may make Permitted Acquisitions Consolidated Capital Expenditures permitted by Section 6.10 and (G) Holdings sale and the Subsidiaries may engage in any Permitted Reorganizationlease-back transactions permitted by Section 6.03.
(b) Make Neither the Borrower nor any Subsidiary shall engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 7585% of 63 58 which is cash, (yii) such consideration is at least equal to the fair market value (as determined in good faith by the Borrower's board of directors or analogous body) of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (as determined in good faith by the Borrower's board of directors or other similar governing body of the entity making such dispositionanalogous body) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) shall not exceed (i) $20,000,000 in any fiscal year or (ii) $100,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Acl Capital Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of the consolidated assets of the Borrower (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of, or any division or line of business of, any other person, except that this Section 6.05 shall not prohibit:
(ia) the Borrower and any Subsidiary may purchase and sell or sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary or the acquisition of facilities, equipment or other assets in the ordinary course of business;
(iib) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) continuing, the merger, consolidation or restructuring of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationperson, (B) or the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Subsidiary, in each case in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided consideration; provided, that if any party to any such transaction is a Loan PartyDesignated Subsidiary shall be merged with another Subsidiary, the resulting corporation must be a Designated Subsidiary, unless the resulting corporation does not meet the requirements of the definition of Significant Subsidiary.
(c) the merger or consolidation of the Borrower with or into any other corporation if at the time thereof and immediately after giving effect thereto (i) no Event of Default or Default shall have occurred and be continuing, (ii) a majority of the Board of Directors of the surviving entity or resulting corporation shall consist of individuals that were members of the Board of Directors of the Borrower immediately prior to such transaction merger or consolidation, and (iii) the surviving or resulting corporation (if not the Borrower) shall be a Loan Party), U.S. corporation and shall expressly assume by a written agreement in form and substance satisfactory to the Administrative Agent (Cand its counsel) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or and the Required Lenders all or any part obligations of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04hereunder; and
(vid) any Permitted Business Acquisitions and other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as investments permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing6.04.
Appears in 1 contract
Samples: Credit Agreement (Kuhlman Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of the Borrowers or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrowers or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrowers or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrowers or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger of any wholly owned Subsidiary may merge into the any Borrower in a transaction in which the such Borrower is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower Borrowers or a wholly owned the Subsidiary Loan Parties receives any consideration consideration, (provided iii) the merger or consolidation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrowers) if the Borrowers determine in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrowers or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) any Foreign Subsidiary may merge into or consolidate shall be made in compliance with any other Foreign SubsidiarySection 6.07 and shall be included in Section 6.05(g);
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04 and Permitted Liens, Dividends permitted by Section 6.06;
(Df) any Subsidiary may be liquidated, wound up or dissolved, or all or any the sale of defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph by this Section 6.05 (aor required to be included in this clause (g) abovepursuant to Section 6.05(c)); provided, except:
that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Borrowers, the greater of (x) $200.0 million and (y) 7% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 after giving effect to the sale, transfer, lease or other disposition in reliance upon this paragraph (g) (provided that this clause (i) shall not exceed $10,000,000;
apply to any transaction entered into at a time when the Borrowers are in Ratio Compliance), (ii) salesno Default or Event of Default exists or would result therefrom, transfers or other dispositions set forth in Schedule 6.05;
(iii) with respect to any Permitted Reorganization;
such sale, transfer, lease or other disposition with aggregate gross proceeds (including non-cash proceeds) in excess of $10.0 million, immediately after giving effect thereto, the Borrowers shall be in Pro Forma Compliance, and (iv) Restricted Payments permitted pursuant to the Net Proceeds thereof are applied in accordance with Section 6.06(a2.11(b);
(vh) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation (i) involving any Borrower, such Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrowers and their Subsidiaries determined by the management of the Borrowers to be no longer useful or necessary in the operation of the business of the Borrowers or any of the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a transaction permitted swap with a fair market value in excess of $5.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrowers with respect to such fair market value and (iii) in the event of a swap with a fair market value in excess of $15.0 million, such exchange shall have been approved by at least a majority of the board of directors of Holdings or the Borrowers; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Borrowers, the greater of $150.0 million and 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 6.045.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of $10.0 million, immediately after giving effect thereto, the Borrowers shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) sale of assets comprising all or a portion of the Industrial Chain Business or Equity Interests in persons the only assets of which at the time of such sale comprise all or a portion of the Industrial Chain Business;
(o) the Honeywell Receivables Transaction; and
(vip) any the Restructuring Transactions. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other Asset Sale disposition of assets shall be permitted by this Section 6.05 (xother than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for consideration fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of which assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is cash, (y) such consideration is for at least equal 75% cash consideration; provided that the provisions of clause (ii) shall not apply to the any individual transaction or series of related transactions involving assets with a fair market value of the less than $5.0 million or to other transactions involving assets being sold, transferred, leased or disposed of and (z) the with a fair market value of not more than the greater of $35.0 million and 3% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (determined iii), (a) the amount of any secured Indebtedness of the Borrowers or any Subsidiary of the Borrowers or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Borrowers’ or such Subsidiary’s most recent balance sheet or in good faith the notes thereto) that is assumed by the board transferee of directors any such assets shall be deemed to be cash and (b) any notes or other similar governing body obligations or other securities or assets received by the Borrowers or such Subsidiary from the transferee that are converted by the Borrowers or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Partycash received) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 1 contract
Samples: Credit Agreement (RBS Global Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate or consolidate with any other person, or permit any other person to merge into into, amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), effect any Delaware LLC Division or Dispose of any Equity Interests of any Subsidiary (including by way of the Borrower or less than all the issuance of Equity Interests of any Subsidiary), or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit:
(i) the purchase and Disposition of inventory, in each case in the ordinary course of business by the Parent Borrower and or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Parent Borrower or any Subsidiary may purchase and sell inventory or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment, (iv) the Disposition of other property in the ordinary course of business by the Parent Borrower or any Subsidiary or determined in good faith by the Parent Borrower to be no longer used or useful in the operation of the business of the Parent Borrower or any Subsidiary, (v) the Disposition of Permitted Investments in the ordinary course of business and (iivi) Dispositions, mergers, amalgamations or consolidations contemplated as of the Closing Date and listed on Schedule 6.05;
(b) if at the time thereof and immediately after giving effect thereto no Specified Default or Event of Default or Default shall have occurred and be continuing or would result therefrom, (Ai) the merger, amalgamation or consolidation of any wholly owned Subsidiary may merge (other than the Co-Borrower) with or into the Parent Borrower or the Co-Borrower in a transaction in which the Parent Borrower or the Co-Borrower is the surviving corporationsurvivor, (Bii) the merger, amalgamation or consolidation of any wholly owned Subsidiary may merge with or into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Parent Borrower, the Co-Borrower or a wholly owned Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger, amalgamation or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Parent Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrowers and is not materially disadvantageous to the Lenders, so long as, to the extent such liquidated or dissolved Subsidiary was a Subsidiary Loan Party, all assets of such Subsidiary upon dissolution thereof are transferred to the Parent Borrower or any Subsidiary Loan Party, (v) any Subsidiary may merge, amalgamate or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Subsidiary Loan Party if the merging, amalgamating or consolidating Subsidiary was a Subsidiary Loan Party (unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.09 and (vi) any Subsidiary may merge, amalgamate or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05;
(c) Dispositions to the Parent Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06;
(f) Dispositions of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) other Dispositions of assets, provided that the Net Proceeds thereof, if any, are applied in accordance with Section 2.09(b) to the extent required thereby;
(h) [reserved];
(i) leases, licenses or subleases or sublicenses of any party real or personal property (including any technology or other Intellectual Property) in the ordinary course of business and not interfering, individually or in the aggregate, in any material respect with the business of the Parent Borrower and its Subsidiaries, taken as a whole;
(j) Dispositions of inventory or Dispositions or abandonment of Intellectual Property of the Parent Borrower and its Subsidiaries determined in the reasonable business judgment by the management of the Parent Borrower to be no longer useful or necessary in the operation of the business of the Parent Borrower or any of the Subsidiaries;
(k) any Disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that (i) any disposition or other allocation of any assets (including any Equity Interests of such transaction Delaware Divided LLC) in connection therewith is otherwise permitted hereunder and (ii) the Loan Parties shall have complied with Section 5.09 with respect thereto; and
(l) to the extent constituting a Disposition, any termination, settlement or extinguishment of obligations in respect of any Hedging Agreement;
(m) any exchange of assets for assets used or useful in a Similar Business of comparable or greater value; provided that at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder; provided, further, that (A) to the extent the assets Disposed of were owned by a Loan Party, the surviving entity of such transaction assets received shall be acquired by a Loan Party, and (B) the Net Proceeds, if any, thereof are applied in accordance with Section 2.09(b) to the extent required thereby;
(n) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture or similar parties set forth in the joint venture agreement or similar binding agreements entered into with respect to such Investment in such joint venture;
(o) if at the time thereof and immediately after giving effect thereto no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into the Parent Borrower; provided that (A) the Parent Borrower shall be the surviving entity or (B) if the surviving entity is not the Parent Borrower (such other person, the “Successor Borrower”), (C1) the Successor Borrower shall be an entity organized or existing under the laws of Canada or any Foreign province or territory thereof or, subject to the consent of the Required Lenders, the United States, any state thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders), (3) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the Guarantee Agreement confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary may merge into Loan Party, unless it is the other party to such merger, amalgamation or consolidate with consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), and (5) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger, amalgamation or consolidation does not violate this Agreement or any other Foreign SubsidiaryLoan Document and (y) if requested by the Administrative Agent (at the direction of the Required Lenders), (D) any Subsidiary may be liquidatedan opinion of counsel to the effect that such merger, wound up amalgamation or dissolved, or all consolidation does not violate this Agreement or any part other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of its businesscounsel (it being understood that if the foregoing are satisfied, property or assets may the Successor Borrower will succeed to, and be conveyedsubstituted for, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Parent Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(aAgreement);
(v) in a transaction permitted pursuant to Section 6.04; and
(vip) if at the time thereof and immediately after giving effect thereto no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other Asset Sale person (other than the Parent Borrower) may be merged, amalgamated or consolidated with or into the Co-Borrower, provided that (A) the Co-Borrower shall be the surviving entity or (B) if the surviving entity is not the Co-Borrower (such other person, the “Successor Co-Borrower”), (1) the Successor Co-Borrower shall be an entity organized or existing under the laws of Canada or any province or territory thereof or, subject to the consent of the Required Lenders, the United States, any state thereof or the District of Columbia or, (2) the Successor Co-Borrower shall expressly assume all the obligations of the Co-Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders), (3) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the Guarantee Agreement confirmed that its guarantee thereunder shall apply to any Successor Co-Borrower’s obligations under this Agreement, (4) each Subsidiary Loan Party, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), and (5) the Successor Co-Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate stating that such merger, amalgamation or consolidation does not violate this Agreement or any other Loan Document and (y) if requested by the Administrative Agent (at the direction of the Required Lenders), an opinion of counsel to the effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of counsel (it being understood that if the foregoing are satisfied, the Successor Co-Borrower will succeed to, and be substituted for, the Co-Borrower under this Agreement). Notwithstanding anything to the contrary contained in Section 6.05 above, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b)(y) of Section 6.03, under Section 6.05(d), shall be permitted unless (i) such Disposition is for consideration fair market value, and (ii) at least 75% of which is cash, the proceeds of such Disposition (yexcept to Loan Parties) such consideration is at least equal consist of cash or Permitted Investments; provided that the provisions of this clause (ii) shall not apply to the any individual transaction or series of related transactions involving assets with a fair market value of less than $10,000,000 (to the assets being soldextent all transactions so excluded pursuant to this proviso do not exceed $30,000,000 in any fiscal year); provided, transferredfurther, leased or disposed that for purposes of and this clause (zii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Parent Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto), other than in respect of any Junior Financing, that are assumed by the transferee of any such assets or are otherwise cancelled in connection with such transaction, (b) any marketable securities received by the Parent Borrower or such Subsidiary from the transferee that are converted by the Parent Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received), (c) any Designated Non-Cash Consideration received by the Parent Borrower or any of its Subsidiaries in such Disposition having an aggregate fair market value (as determined in good faith by the board of directors or Parent Borrower), taken together with all other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of Designated Non-Cash Consideration received pursuant to this clause (vic) shall that is at that time outstanding, not to exceed the greater of (x) $20,000,000 in 50,000,000 and (y) 1.00% of Consolidated Total Assets calculated on a Pro Forma Basis for the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect Test Period ended immediately prior to the sale receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), (d) the amount of Indebtedness (other than any Junior Financing) of any Subsidiary or Collateralthat is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Parent Borrower and each other Subsidiary are released from any guarantee of payment of such Subsidiary or Collateral Indebtedness in connection with the Asset Sale and (unless sold to a Loan Partye) shall be sold free and clear consideration consisting of Indebtedness of the Liens created by Parent Borrower or a Subsidiary (other than any Junior Financing) received from persons who are not the Security Documents, Parent Borrower or a Subsidiary in connection with the Asset Sale and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingthat is cancelled.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidate with any other personconsolidation, or permit any other person to merge into or consolidate with itconvey, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series agree to do any of transactionsthe foregoing at any future time) all or substantially all the assets (whether now owned any part of its property or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiaryassets, or purchase, lease purchase or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and intangible assets in the ordinary course of business) of any other personperson (or agree to do any of the foregoing at any future time), except that that:
(a) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted to the extent not in violation of Section 6.08;
(b) each of the Borrower and its Subsidiaries may (i) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such person, are obsolete, worn out or otherwise no longer useful in the conduct of such person's business, provided that any assets sold or otherwise disposed pursuant to this clause (b)(i) shall be replaced with new assets performing substantially the same function and (ii) subject to Section 2.13(b), sell, lease or otherwise dispose of any assets, provided that the aggregate consideration received in respect of all assets subject to sales or other dispositions pursuant to this clause (b)(ii) shall not exceed $10,000,000 in any four fiscal quarters of the Borrower;
(c) investments may be made to the extent permitted by Section 6.04;
(d) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property in the ordinary course of business (so long as any Subsidiary such lease does not create a Capital Lease Obligation except to the extent permitted by Section 6.01);
(e) each of the Borrower and its Subsidiaries may purchase and sell make sales or transfers of inventory in the ordinary course of business and consistent with past practices (iiincluding without limitation sales or transfers of inventory by the Borrower to its Subsidiaries);
(f) if at the time Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, overdue accounts receivable arising in the 75 70 ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and immediately after giving effect thereto no Event not as part of Default any bulk sale);
(g) licenses, cross-licenses or Default sublicenses by the Borrower and its Subsidiaries of software, trademarks and other intellectual property in the ordinary course of business and which do not materially interfere with the business of Holdings and its Subsidiaries, taken as a whole, or the Borrower shall have occurred and be continuing permitted;
(Ah) the Acquisition shall be permitted;
(i) the Borrower or any wholly owned Domestic Wholly Owned Subsidiary of the Borrower may transfer assets or lease to or acquire or lease assets from the Borrower or any other Domestic Wholly Owned Subsidiary or any Domestic Wholly Owned Subsidiary may merge be merged into the Borrower in a transaction in which (as long as the Borrower is the surviving corporation, (Bcorporation of such merger as a Wholly Owned Subsidiary of) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Domestic Wholly Owned Subsidiary in a transaction in which of the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration Borrower;
(provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fj) the Borrower and the its Subsidiaries may make Permitted Acquisitions incur Tools and (G) Holdings and the Subsidiaries may engage Molding Expenditures in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred an aggregate amount not to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) 15,000,000 during any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04fiscal year; and
(vik) any other Asset Sale the Borrower (xor its Subsidiary that is the fee owner of the Mountain View Property) for consideration at least 75% shall be permitted to consummate the sale of which is cashthe Mountain View Property, so long as (yi) such consideration sale is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the for fair market value (as determined in good faith by the board Board of directors or other similar governing body Directors of the entity making Borrower (or such dispositionSubsidiary)), (ii) such sale results in consideration consisting of at least 85% (for this purpose, taking the amount of cash and the fair market value of all assets soldnoncash consideration, transferredas determined in good faith by the Borrower (or such Subsidiary)) cash, leased (iii) such sale is consummated on or disposed prior to the ninetieth day after the Closing Date and (iv) there shall exist no Default or Event of pursuant to this clause Default (vi) shall not exceed $20,000,000 in the aggregateboth before and after giving effect thereto). To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, or any Collateral is sold as permitted by this Section 6.05, such Subsidiary or Collateral (unless sold to Holdings or a Loan PartySubsidiary of Holdings) shall be sold free and clear of the Liens created by the Security Documents, and the Agents Administrative Agent and Collateral Agent shall be authorized to take all any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Fairchild Semiconductor International Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge Subject to compliance with Section 6.04, merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that (i) the Borrower and any Subsidiary may purchase (subject to the limitations set forth in Section 6.10), sell or swap (or transfer to another Loan Party), inventory, Aircraft, airframes, engines and sell inventory spare parts in the ordinary course of business and (ii) the Borrower and any Subsidiary may acquire any of its offices set forth in Schedule 6.05 which as of the Closing Date are leased from the current owner, (iii) the Borrower and any Subsidiary may lease and effect transfers to third parties of Aircraft, Airframes, Engines or Spare Parts pursuant to the terms of the Aircraft Security Agreement, (iv) the Borrower may consolidate, amalgamate or merge with a successor company, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing and such successor company (A) expressly assumes all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to an amendment to this agreement or other documents or instruments in form reasonably satisfactory to the Administrative Agent and (B) delivers to the Administrative Agent a certificate in the form required pursuant to Section 5.04(d), together with an opinion of counsel, stating that such consolidation, amalgamation, merger or transfer and such amendment, if any, comply with this Agreement and, if an amendment is required in connection with such transaction, such supplement shall comply with the applicable provisions of this Agreement and such other matters reasonably requested by the Administrative Agent, (v) any wholly owned Wholly Owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bvi) any wholly owned Wholly Owned Subsidiary may merge into or consolidate with any other wholly owned Wholly Owned Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Subsidiary and no person Person other than the Borrower or a wholly owned Wholly Owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), ) and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fvii) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationAcquisitions.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) paragraph shall not exceed (i) $20,000,000 in any Fiscal Year. Upon any consolidation, amalgamation or merger of the aggregate. To Borrower in accordance with Section 6.05(a)(iv) the extent any Subsidiary successor Person formed by such consolidation or Collateral is sold as permitted by this Section 6.05, or into which the Required Lenders or all the LendersBorrower, as applicablethe case may be, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary is amalgamated or Collateralmerged, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documentssucceed to, and be substituted for, and may exercise every right and power of, the Agents shall take all actions reasonably requested by Borrower under this Agreement, with the applicable Loan Party, at same effect as if such successor Person had been named as the sole cost and expense of the applicable Loan Party, in order to effect the foregoingBorrower herein.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. No Borrower shall:
(a) Merge into consummate any merger, consolidation or consolidate with any other personamalgamation, or permit liquidate, wind up or dissolve itself (or suffer any other person to merge into liquidation or consolidate with itdissolution), or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) Transfer all or substantially all the assets (whether now owned of its Property or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personbusiness, except that that:
(i) the any Borrower may be merged, amalgamated, liquidated or consolidated with or into and may Transfer all or substantially all of its assets to any other Borrower that is wholly owned, directly or indirectly, by GHLLC;
(ii) any Subsidiary may purchase be merged, amalgamated, liquidated or consolidated with or into and sell inventory may Transfer all or substantially all of its assets to any Borrower (so long as (x) in the case of such merger, amalgamation, liquidation or consolidation, such Borrower shall be the continuing or surviving entity and (y) no such merger, amalgamation, liquidation or consolidation shall be between a Genesis Subsidiary and a Skilled Subsidiary); and
(iii) any Subsidiary may be merged, amalgamated, liquidated or consolidated with or into and may Transfer all or substantially all of its assets to any other Subsidiary (other than the Borrowers and provided that (x) if one of the parties to such merger, amalgmation, liquidation or consolidation or Transfer is a Loan Party, either (i) such Loan Party shall be the continuing or surviving entity or the recipient of such assets or (ii) simultaneously with such transaction, the continuing or surviving entity shall become a Borrower and the Borrowers shall comply with Section 7.10 in connection therewith, and (y) no such merger, amalgamation, liquidation or consolidation or Transfer shall be between a Genesis Subsidiary and a Skilled Subsidiary).
(b) Transfer any of its property or interests in such property or issue, or cause or permit a direct or indirect Transfer of, its own Equity Interests, except for the following:
(i) in each case to the extent entered into in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event made to a Person that is not an Affiliate of Default or Default shall have occurred and be continuing Borrower, (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, Transfers of Cash Equivalents for goods or services of equivalent value and (B) any wholly owned Subsidiary may merge into inventory or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary property that has become obsolete or worn out; Second Amended and no person other than the Borrower or a wholly owned Subsidiary receives any consideration Restated Genesis Revolving Credit Agreement (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (CHUD Facility) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;CHICAGO/#3103747.13103747.3A
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;any Restricted Payment by any Loan Party permitted pursuant to Section 8.6; and
(iii) Transfer or issuance by any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant Borrower of its own Equity Interests or other property to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingBorrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Genesis Healthcare, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or or, except for sales of accounts receivable pursuant to the Receivables Transfer Program, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) or sell, transfer, lease or otherwise dispose of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that that:
(a) if immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) any wholly owned Subsidiary may (A) merge or consolidate into the Borrower and in a transaction in which the Borrower is the surviving corporation or (B) transfer assets to the Borrower, (ii) any wholly owned Subsidiary may purchase merge into or consolidate with or transfer assets to or acquire assets from any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and sell inventory in no Person other than the ordinary course of business Borrower or a wholly owned Subsidiary receives any consider- ation and (iiiii) the Borrower may merge or consolidate with or into the Parent if the Parent (A) is the continuing or surviving corporation and (B) shall expressly assume the obligations of the Borrower hereunder pursuant to a written agreement in form and substance reasonably satisfactory to the Administrative Agent;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationcontinuing, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary at any time may be liquidatedsell, wound up transfer or dissolved, or otherwise dispose of all or any part of its business, property or the assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary (including the outstanding capital stock of such Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign SubsidiaryPerson, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
provided that (i) the consideration in a transaction referred to in Section 6.03; provided that the aggregate fair market value respect of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration disposition is at least equal to the fair market value of the such assets being sold, transferred, leased or disposed of and (zii) the fair market book value of such assets (determined in good faith by or capital stock), when added to the board of directors or other similar governing body of the entity making such disposition) aggregate book value of all other assets sold, transferred, leased (or capital stock) previously disposed of pursuant to this clause paragraph (vib), does not exceed 25% of Consolidated Net Worth at such time (immediately prior to giving effect to such disposition);
(c) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing and subject to the further conditions set forth below, the Borrower or any Subsidiary may acquire all or any part of the assets or capital stock or equity interest of any other Person or may merge or consolidate with such Person in a transaction in which the Borrower or such Subsidiary is the surviving corporation; provided, however, that prior to the consummation of such transaction, the Borrower shall have provided to the Administrative Agent a certificate in reasonable detail demonstrating that such merger, acquisition, or consolidation will not, 55 on a pro forma basis, cause a breach of the covenants contained in any of Sections 6.05, 6.06, 6.07 or 6.08 hereof and will not otherwise cause a breach of any other covenant required to be performed or observed by the Borrower or any Subsidiary hereunder;
(d) any Credit Card Bank may sell credit cardholder accounts (and the related Accounts) of Fingerhut Corporation customers at fair market value to any Affiliate of the Parent or any other Person designated by the Parent; and
(e) any Credit Card Bank may sell credit cardholder accounts (and the related Accounts) so long as, after giving effect to such sale, the aggregate number of such accounts sold pursuant to this paragraph (e) during the twelve-month period ending on the date of such sale shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear 10% of the Liens created number of such accounts (excluding credit cardholder accounts of Fingerhut Corporation customers) owned by the Security Documents, Borrower and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order its Subsidiaries immediately prior to giving effect the foregoingto such sale.
Appears in 1 contract
Samples: Revolving Credit and Letter of Credit Facility Agreement (Metris Companies Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other personPerson, or permit any other person Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Relevant Subsidiary or preferred equity interests of the Borrower or less than all the Equity Interests of any Relevant Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell inventory sale of inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of intellectual property, in each case in the ordinary course of business and by the Borrower or any of its Relevant Subsidiaries, (ii) the sale of any other asset in the ordinary course of business by the Borrower or any of its Relevant Subsidiaries, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any of its Relevant Subsidiaries or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger or consolidation of any wholly owned Relevant Subsidiary may merge of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bii) the merger or consolidation of any wholly owned Relevant Subsidiary may merge of the Borrower into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, amalgamation or consolidation of any Subsidiary of the Borrower that if is not a Loan Party into or with any party to any such transaction other Subsidiary of the Borrower that is not a Loan Party, (iv) the surviving liquidation, winding up, or dissolution or change in form of entity of any Relevant Subsidiary of the Borrower if the Borrower determines in good faith that such transaction liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) the change in form of entity of the Borrower if the Borrower determines in good faith that such change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary of the Borrower that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party), Party to a Subsidiary that is not a Loan Party in reliance upon this paragraph (Cc) and the aggregate gross proceeds of any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofleased in reliance upon paragraph (g) below shall not exceed, in one transaction or a series any fiscal year of transactionsthe Borrower, to Borrower or any wholly5.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-owned SubsidiaryBack Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(Ef) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any the sale of defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant in reliance upon this paragraph (g) and in reliance upon the second proviso to this clause paragraph (c) above shall not exceed, in any fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided further that the Net Proceeds thereof are applied in accordance with Section 2.11(c); and provided further that after giving effect thereto, no Default or Event of Default shall have occurred;
(h) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Relevant Subsidiary, the surviving or resulting entity shall not exceed $10,000,000be a Loan Party;
(iii) sales, transfers licensing and cross-licensing arrangements involving any technology or other dispositions set forth intellectual property of the Borrower or any Relevant Subsidiary in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04the ordinary course of business; and
(vij) abandonment, cancellation or disposition of any intellectual property of the Borrower or any Relevant Subsidiary in the ordinary course of business. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) the Borrower may, so long as no Event of Default shall have occurred and be continuing or would result therefrom, sell, grant or otherwise issue Equity Interests to members of management of the Borrower or any of the Subsidiaries of the Borrower that are Loan Parties pursuant to stock option, stock ownership, stock incentive or similar plans, (ii) no sale, transfer or other Asset Sale disposition of assets shall be permitted by this Section 6.05 (xother than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for consideration fair market value, (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (d), or (j) of this Section 6.05 unless such disposition is for at least 75% of which is cash, (y) such cash consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziv) the fair market value (determined in good faith by the board of directors no sale, transfer or other similar governing body disposition of the entity making such disposition) assets in excess of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) U.S. $5.0 million shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions paragraph (g) of this Section 6.05 with respect to unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (iii) and (iv), the sale amount of any secured Indebtedness or other Indebtedness of a Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to of the Borrower that is not a Loan PartyParty (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that (i) the Borrower and any Restricted Subsidiary (other than an Inactive Subsidiary or Finsub) may purchase and sell inventory in in
(A) the ordinary course of business Borrower and any Restricted Subsidiary (other than an Inactive Subsidiary) may sell Program Receivables to Finsub and (iiB) Finsub may sell Program Receivables pursuant to the Receivables Program Documentation and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary (other than Finsub) may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Restricted Subsidiary (other than Finsub) may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Restricted Subsidiary and no person other than the Borrower or a wholly owned Restricted Subsidiary receives any consideration; provided that, if either of the wholly owned Subsidiaries party to such merger or consolidation is a Guarantor, then the surviving entity shall be or become a Guarantor, (C) in connection with any Permitted Acquisition pursuant to Section 6.04(d), the Borrower or any wholly owned Subsidiary may acquire or merge into or consolidate with any entity acquired pursuant to such Permitted Acquisition in a transaction in which the surviving entity is the Borrower or a wholly owned Subsidiary; provided that, (x) if the Borrower is a party to such merger or consolidation, the Borrower shall be the surviving corporation, and (y) if any wholly owned Subsidiary that is a Guarantor merges into or consolidates with any entity acquired pursuant to such Permitted Acquisition, then the surviving entity shall be or become a Guarantor, (D) the Borrower or any Subsidiary may transfer not less than 100% of the capital stock of, or assets of, a Domestic Subsidiary to the Borrower or to any wholly owned Domestic Subsidiary where no person other than the Borrower or a wholly owned Subsidiary receives any consideration; provided that, if (x) such capital stock or such assets being transferred is capital stock of, or assets of, a Guarantor, then the recipient thereof shall be or become a Guarantor, and (y) if the transferor of such capital stock or such assets is a Guarantor, then the recipient thereof shall be or become a Guarantor, (E) the Borrower or any Subsidiary may transfer not less than 100% of the capital stock of a Foreign Subsidiary Issuer to any Special Purpose Foreign Holding Subsidiary where no person other than the Borrower or a wholly owned Subsidiary receives any consideration, (F) any Second-Tier Foreign Subsidiary may transfer not less than 100% of the capital stock of, or assets of, a Second-Tier Foreign Subsidiary to the Borrower or any wholly owned Subsidiary where no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings the Borrower or any Subsidiary may transfer not less than 100% of the capital stock of, or assets of, a Second-Tier Foreign Subsidiary to any Special Purpose Foreign Holding Subsidiary or any Foreign Subsidiary Issuer where no person other than the Borrower or a wholly owned Subsidiary receives any consideration; provided, however, that any merger, consolidation or transfer of assets by or between the Borrower or a Restricted Subsidiary, on the one hand, and an Unrestricted Subsidiary, on the Subsidiaries may engage other hand, shall be subject to the limitation set forth in any Permitted ReorganizationSection 6.04(1).
(b) Make Engage in any Asset Sale not otherwise permitted under paragraph (aprohibited by Section 6.05(a) above, except:
unless all of the following conditions are met: (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration received is at least equal to the fair market value of such assets; (ii) at least 80% of the assets being sold, transferred, leased or disposed of and consideration received is cash; (ziii) the fair market value Net Cash Proceeds of such Asset Sale are applied as required by Section 2.13(a); (determined in good faith by the board of directors or other similar governing body of the entity making such dispositioniv) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect after giving effect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear other disposition of the Liens created by assets included within the Security Documents, Asset Sale and the Agents repayment of Indebtedness with the proceeds thereof, the Borrower is in compliance on a pro forma basis with the covenants set forth in Sections 6.11, 6.12 and 6.13 recomputed for the most recently ended fiscal quarter for which information is available and is in compliance with all other terms and conditions contained in this Agreement; and (v) no Default or Event of Default shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingresult from such Asset Sale.
Appears in 1 contract
Samples: Amendment Agreement (Terex Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease assign, lease, sublease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets any substantial part of any asset (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part (to the extent such assets constitute one or more distinct business units or operations) of the assets of any other personPerson; provided, except however, that:
(a) the Borrower and any Subsidiary may sell Permitted Investments for cash;
(b) the Borrower and any Subsidiary may sell, transfer or otherwise dispose of used or surplus equipment, vehicles and other assets in the ordinary course of business (to the extent that the Borrower shall have complied with the provisions of Section 2.13(c));
(ic) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business;
(d) subject to the provisions of this Section 7.05 below, the Borrower or any Subsidiary Guarantor that is a wholly-owned Subsidiary may make acquisitions of assets or equity securities of any Person organized and validly existing under the laws of the United States, any State thereof or the District of Columbia, so long as:
(i) the Person or business and to be acquired shall have positive cash flow (determined in accordance with GAAP) for its most recent four fiscal quarters preceding such acquisition;
(ii) if at the time thereof and immediately Borrower, on a pro forma basis after giving effect thereto no Event to such acquisition (as reflected in projections based upon reasonable assumptions and delivered to the Lenders), will comply with the covenants in Sections 7.15 and 7.16 throughout the term of Default the Facilities and will have cash flow (including, for purposes of such projections, amounts available to be borrowed under the Revolving Credit Facility) sufficient to meet all scheduled payments of principal of and interest on the Facilities through the Maturity Date;
(iii) the Person or Default business to be acquired is in the same line of business as the Borrower; and
(iv) the Borrower has received the prior written approval of the necessary Lenders, as provided in this clause (d) below, it being understood that any Lender may withhold such consent in its sole and absolute discretion. Notwithstanding the provisions of this Section 7.05(d), the Borrower may consummate only one Qualified Acquisition in addition to the Proposed TNT Acquisition, or two Qualified Acquisitions if the Borrower elects not to consummate the Proposed TNT Acquisition, and the Borrower may consummate each such additional Qualified Acquisition only with the prior written approval of Lenders holding 66 2/3 % or more of the Commitments and 66 2/3% of the outstanding Loans; any other Qualified Acquisition shall have occurred be subject to the prior written approval of 100% of the Lenders. Together with each request for the Lenders' consent to a Qualified Acquisition, the Borrower shall submit any updated Schedules that the Borrower proposes to use in connection with such Qualified Acquisition, and if such Qualified Acquisition is approved the Schedules shall automatically be continuing deemed amended to reflect the changes set forth in such updated Schedules.
(Ae) the Borrower may consummate the Proposed TNT Acquisition in all material respects on the terms and conditions disclosed to the Lenders prior to the Closing Date, with such modifications and amendments to such terms and conditions as the Required Lenders may approve; and
(i) any wholly owned Subsidiary Guarantor may merge into or be liquidated into the Borrower in a transaction in which the Borrower is the surviving corporationcooporation, (Bii) any wholly owned Subsidiary Guarantor may merge into or be liquidated into or consolidate with any other wholly owned Subsidiary Guarantor, in either case in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary Guarantor receives any consideration and (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (Ciii) any Foreign Subsidiary that is not a Subsidiary Guarantor may merge into or be liquidated into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or that is not a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationGuarantor.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate or amalgamate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii1) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have has occurred and be is continuing or would result therefrom:
(Aa) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor;
(b) the merger, consolidation or amalgamation of any Restricted Subsidiary (Bother than a PropCo Guarantor) any wholly owned Subsidiary may merge into or consolidate with any Subsidiary Loan Party (other wholly owned Subsidiary than a PropCo Guarantor) in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party; and, in the case of each of the foregoing clause (a) and this clause (b), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;
(provided c) the merger, consolidation or amalgamation of any Restricted Subsidiary that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary that is not a Loan Party;
(d) (i) any transfer of inventory among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the surviving ordinary course of business; or (ii) any other transfer of property or assets among the Borrower and any Subsidiary Loan Party (other than a PropCo Guarantor); provided any Collateral so transferred pursuant to this clause (ii) shall remain Collateral subject to valid and perfected Liens in favor of the Collateral Agent;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if a Responsible Officer of the Borrower determines in good faith that such transaction shall liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; or
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment so long as the continuing or surviving Person will be a Subsidiary Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10; or
(g) the liquidation or dissolution of (i) any Immaterial Subsidiary or (ii) in the event that none of the Notes PropCo Assets constitute Non-Mortgageable Leases, Notes PropCo;
(2) any sale, transfer or other disposition if:
(a) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(b) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of the Borrower in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of the Borrower or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), (C) any Foreign Subsidiary may merge into or consolidate other than liabilities that are by their terms Junior Financing and subordinated in right of payment to the Term Loan Obligations), that are assumed by the transferee with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, respect to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the applicable disposition and for which the Borrower and the Restricted Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage have been validly released by all applicable creditors in any Permitted Reorganization.writing; and
(bii) Make any Asset Sale otherwise permitted under paragraph securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (ato the extent of the cash received) above, except:within 18090 days following the closing of the applicable disposition; and
(iiii) any Designated Non-Cash Consideration received in a transaction referred to in Section 6.03respect of such disposition; provided that the aggregate fair market value of all assets soldsuch Designated Non-Cash Consideration, transferredas determined by a Responsible Officer of the Borrower in good faith, leased or disposed of taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iiii) shall that is then outstanding, does not exceed the greater of (A) $10,000,000;
125.0 million and (iiB) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 751.50% of which Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is cashreceived, (y) such consideration is at least equal to with the fair market value of each item of Designated Non-Cash Consideration being measured at the assets being sold, transferred, leased or disposed of time received and without giving effect to subsequent changes in value;
(za) the fair market value purchase and sale of inventory in the ordinary course of business; (determined in good faith by b) the board of directors acquisition or other similar governing body of the entity making such dispositionlease (pursuant to an operating lease) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 any other asset in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions ordinary course of this Section 6.05 with respect to business; (c) the sale of any Subsidiary surplus, obsolete, damaged or Collateralworn out equipment or other property in the ordinary course of business; or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) Sale and Lease-Back Transactions permitted by Section 6.03;
(5) Investments permitted by Section 6.04, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security DocumentsPermitted Liens, and Restricted Payments permitted by Section 6.06;
(6) the Agents shall take all actions reasonably requested by sale of defaulted receivables in the applicable Loan Partyordinary course of business and not as part of an accounts receivables financing transaction;
(7) Permitted Acquisitions, at the sole cost and expense of the applicable Loan Partyincluding any merger, consolidation or amalgamation in order to effect a Permitted Acquisition; provided that following any such merger, consolidation or amalgamation: (a) involving the foregoing.Borrower Party, the Borrower Party is the surviving corporation; and (b), immediately before and immediately after such transaction, the Payment Conditions are satisfied;
(8) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(9) sales, licenses, transfers, abandonments, allowances to lapse or other dispositions of Intellectual Property (as defined in the Collateral Agreement) that are immaterial or no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary, as determined by a Responsible Officer of the Borrower reasonably and in good faith;
(10) (9) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary, as determined by a Responsible Officer of the Borrower reasonably and in good faith;
(11) (10) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire except that:
(in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (ia) the Borrower Guarantors and any Subsidiary the Subsidiaries may purchase and sell inventory assets or properties in the ordinary course of business business;
(b) the Guarantors and their Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(iic) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ai) any wholly owned Loan Party or Subsidiary may merge or liquidate into the Borrower a Loan Party in a transaction in which the Borrower such Loan Party is the surviving corporation, entity and (Bii) any wholly owned Subsidiary may merge or liquidate into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person Person other than the Borrower a Loan Party or a wholly owned Subsidiary receives any consideration consideration;
(provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fd) the Borrower Loan Parties and the Subsidiaries may make effect sales and transfers of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Acquisitions and Reorganization Transactions;
(Ge) Holdings the Loan Parties and the Subsidiaries may engage in sell, transfer or otherwise dispose of any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers property for cash or other dispositions set forth consideration reasonably determined by the Loan Parties to be in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is an amount at least equal to the fair market value of such assets or property; and
(f) the assets being sold, transferred, leased or disposed Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that in the case of transactions under clauses (c) and (zd) above and, if the fair market transaction has a value of $25,000,000 or more, clauses (determined e) and (f) above, the Loan Parties are in good faith by the board of directors or other similar governing body of the entity making Pro Forma Compliance immediately after giving effect to such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingtransaction.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of conduct any Subsidiary, Asset Sale or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that except:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (iia) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ai) any wholly owned Subsidiary or any Guarantor may merge or consolidate into the any Borrower or Guarantor in a transaction in which the such Borrower or Guarantor is the surviving corporationcorporation and no person other than the Borrower, the Parent Borrower, a Guarantor or any wholly owned Domestic Subsidiary receives any consideration, (Bii) any Borrower (other than the Parent Borrower) may merge into or consolidate with any wholly owned Subsidiary or Guarantor in a transaction in which no person other than a Borrower, Guarantor or wholly owned Domestic Subsidiary receives any consideration and the surviving or resulting corporation upon the consummation of such merger or consolidation is or becomes a Borrower and (iii) any wholly owned Subsidiary or any Guarantor may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Domestic Subsidiary and no person other than the any Borrower or a wholly owned Domestic Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, and so long as the surviving entity is a Guarantor or becomes a Guarantor to the extent required by Section 5.11;
(b) the Parent Borrower and the Subsidiaries may conduct any Asset Sale, provided that the fair market value of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or the assets may be conveyed, sold, leased, transferred or otherwise disposed ofof pursuant to this Section 6.05(b) (excluding any Casualty Event or Condemnation Event) shall not exceed $10,000,000 on a cumulative basis during the term of this Agreement (as determined in good faith by a Financial Officer of the Parent Borrower), in one transaction or a series of transactions, provided that the Net Cash Proceeds from any such sale shall be applied to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower extent required by Section 2.13 and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make provided further that any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i6.05(b) shall not exceed $10,000,000;
be permitted unless (iiA) salessuch sale, transfers transfer or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) disposition is for consideration at least 75% of which is cash, and (yB) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased transferred or disposed of and (z) the fair market value (as determined in good faith by a Financial Officer of the Parent Borrower);
(c) the Parent Borrower may sell equity interests in CBHS, provided that at no time prior to any Permitted CBHS Sale shall (i) the Parent Borrower cease to own at least 25% of the equity interests in CBHS and (ii) the equity interests in CBHS owned by the Parent Borrower be less than the equity interests in CBHS owned by any other person or group, unless in the case of clause (ii), the Parent Borrower has, at such time, the right or ability by contract or otherwise to elect or designate for election more than 20% of the governing board of directors CBHS;
(d) the Parent Borrower or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05may make Permitted Acquisitions; provided, or however, that the Required Lenders or all the Lenders, as applicable, waive Borrowers will not be required to comply with the provisions of this Section 6.05 5.11 with respect to any Subsidiary that is an Acquired Entity (and the acquisition of such Acquired Entity shall constitute a Permitted Acquisition notwithstanding the failure of such acquisition to satisfy the criteria set forth in clauses (c)(ii) and (c)(iii) of the definition of the term "Permitted Acquisition") if (i) compliance with Section 5.11 with respect to such Acquired Entity would violate applicable law or any regulation, rule, order, approval, license or other restriction issued or imposed by any Governmental Authority and (ii) after giving effect to the acquisition of such Acquired Entity, no Default or Event of Default with respect to a failure to satisfy the requirements of Section 6.04(p) shall have occurred and be continuing;
(e) any sale and leaseback transaction permitted by Section 6.03 may be effected, provided that the Net Cash Proceeds from such sale shall be applied as required by Section 2.13;
(f) any transfer of assets made in connection with any Permitted Non-Control Investment or any Permitted Non-Guarantor Transaction may be effected, provided that any Net Cash Proceeds from such transfer shall be applied as required by Section 2.13;
(g) any Permitted CBHS Sale may be effected, provided that any Net Cash Proceeds from such sale shall be applied as required by Section 2.13;
(h) any Subsidiary may liquidate and distribute assets to any other Subsidiary, a Guarantor or the Parent Borrower, provided that if the Subsidiary that is being liquidated is a Guarantor or a Borrower, the Subsidiary that receives the assets pursuant to such liquidation shall be a Guarantor or a Borrower;
(i) any Loan Party or any Subsidiary may lease or sublease (whether as lessor or lessee) properties in a Permitted CBHS Lease Transaction or otherwise in the ordinary course of business and consistent with past practice;
(j) the Parent Borrower may cause to be sold one or both of Charter Clinic Chelsea and Charter Nightingale Hospital, each located in England, whether effected as a sale of assets or a sale of capital stock or other equity interests in any Subsidiary or CollateralPerson(s) owning such hospitals, in any case for cash in an amount equal to the fair market value thereof (as determined in good faith by a Financial Officer of the Parent Borrower), provided that the Net Cash Proceeds from such Subsidiary or Collateral (unless sold to a Loan Party) sale shall be applied as required by Section 2.13; and
(k) the Parent Borrower may cause to be sold free and clear Clinique La Metairie located in Switzerland, whether effected as a sale of assets or a sale of capital stock or other equity interests of any Person(s) owning Clinique La Metairie, in any case for cash in an amount equal to the fair market value thereof (as determined in good faith by a Financial Officer of the Liens created Parent Borrower), provided that the Net Cash Proceeds from such sale shall be applied as required by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingSection 2.13.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ax) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (By) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), ) and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fz) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationAcquisitions.
(b) Make Engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cashcash (or the assets are exchanged substantially simultaneously for similar replacement assets), (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) shall not exceed (x) $20,000,000 2,500,000 in any fiscal year or (y) $10,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05aggregate (provided, or the Required Lenders or all the Lendershowever, as applicable, waive the provisions of this Section 6.05 with respect that up to $10,000,000 in proceeds from the sale or other disposition by the Borrower of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) the Equity Interests in the ChoiceParts JV held by the Borrower shall be sold free and clear not be counted for purposes of determining compliance with the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, limitations set forth in order to effect the foregoingthis clause (iii)).
Appears in 1 contract
Samples: Credit Agreement (CCC Information Services Group Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of the U.S. Borrower or any SubsidiarySubsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by Holdings or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by Holdings or any Subsidiary or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger of any wholly owned Subsidiary may merge into a Borrower (including, without limitation, the merger of NDC with and into the U.S. Borrower, with the U.S. Borrower as the surviving person) in a transaction in which the such Borrower is the surviving corporation, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a Domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than the a Borrower or a wholly owned Subsidiary Loan Party receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)consideration, (Ciii) the merger or consolidation of any Foreign Subsidiary may merge that is not a Subsidiary Loan Party into or consolidate with any other Foreign Subsidiary, Subsidiary that is not a Subsidiary Loan Party or (Div) the liquidation or dissolution or change in form of entity of any Subsidiary may (other than a Borrower) if Holdings determines in good faith that such liquidation or dissolution is in the best interests of Holdings and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Domestic Subsidiary Loan Party shall be liquidatedmade in compliance with Section 6.07; provided, wound up further that the aggregate gross proceeds of any sales, transfers, leases or dissolved, other dispositions by a Loan Party to a Subsidiary that is not a Domestic Subsidiary Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofleased in reliance upon paragraph (h) below shall not exceed, in one transaction or a series any fiscal year of transactionsHoldings, to Borrower or any wholly5 % of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-owned SubsidiaryBack Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Ff) the Borrower purchase and the Subsidiaries may make Permitted Acquisitions and sale or other transfer (Gincluding by capital contribution) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
of Receivables Assets either (i) in a transaction referred pursuant to in Section 6.03Permitted Receivables Financings or (ii) to the extent such sale or transfer is by Foreign Subsidiaries (other than Foreign Subsidiary Loan Parties) with respect to their own Receivables Assets; provided that the aggregate fair market value gross proceeds of any or all Receivables Assets sold or transferred (including capital contributions of Receivables Assets) in reliance upon clause (ii) of this paragraph (f) shall not exceed $200.0 million in any fiscal year;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (h) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of Holdings, 5 % of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(c).
(i) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(j) the sale or disposition identified on Schedule 6.05(j) (the “Specified Asset Sale”); provided that (i)(x) on a Pro Forma Basis after giving effect to the Specified Asset Sale and any prepayment made pursuant to this clause paragraph (ij), Holdings shall be in compliance with the Financial Performance Covenants as of the most recent Test Period for which financial statements were delivered pursuant to Section 5.04(a) or (b) or, if prior to the first delivery date for such financial statements hereunder, as of the end of the period for which the most recent financial statements of Holdings are available and if the last day of any such period is prior to the first Test Period for which the Financial Performance Covenants are tested, the levels for the first Test Period for which the Financial Performance Covenants are tested shall not exceed $10,000,000be deemed to apply for such purpose and (y) no Default or Event of Default shall exist on the date of such Specified Asset Sale before or after giving effect to any prepayment made pursuant to this paragraph (j), (ii) Holdings shall have delivered to the Administrative Agent a certificate of a Financial Officer of Holdings setting forth such pro forma compliance with the Financial Performance Covenants and (iii) the Net Proceeds thereof are applied in accordance with Section 2.11(c) and the definition of “Net Proceeds” and at least 50% of the net cash proceeds thereof shall be applied to repay Existing Notes, Finance Notes, Term Loans and/or Indebtedness outstanding under the Existing Credit Agreement;
(iik) sales, transfers licenses of Intellectual Property of the U.S. Borrower or any Subsidiary and other dispositions set forth similar agreements entered into in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04the ordinary course of business; and
(vil) sales, leases or other dispositions of inventory of Holdings and its Subsidiaries determined by the management of Holdings or the U.S. Borrower to be no longer useful or necessary in the operation of the business of Holdings or any of the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(c). Notwithstanding anything to the contrary contained in Section 6.05 above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower and NDC and directly at least a majority of the Equity Interests of the U.S. Borrower, (ii) the U.S. Borrower shall at all times own directly or indirectly through a Domestic Subsidiary Loan Party at least 70% of the Equity Interests of NDC; provided that the foregoing clause (ii) shall not apply after any merger of NDC with and into the U.S. Borrower, with the U.S. Borrower as the surviving person, (iii) neither Holdings nor any Subsidiary that owns Equity Interests in the U.S. Borrower or in any other Asset Sale Subsidiary that directly owns Equity Interests in the U.S. Borrower shall sell, dispose of, xxxxx x Xxxx on or otherwise transfer such Equity Interests in the U.S. Borrower or in such Subsidiary, as applicable, (xiv) each Foreign Subsidiary Borrower shall be a Wholly Owned Subsidiary, (iv) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof and purchases, sales or transfers pursuant to paragraph (f) hereof) unless such disposition is for consideration fair market value, (v) no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (d), (f), (j) or (l) of this Section 6.05 unless such disposition is for at least 75% of which is cash, (y) such cash consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) no sale, transfer or other disposition of assets in excess of $10.0 million shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions paragraph (h) of this Section 6.05 with respect to unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (v) and (vi), the sale amount of any secured Indebtedness or other Indebtedness of a Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to that is not a Loan PartyParty (as shown on Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingdeemed cash.
Appears in 1 contract
Samples: Credit Agreement (Nalco Holding CO)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and business, (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ax) any wholly owned Subsidiary may liquidate or dissolve or merge or consolidate into the Borrower in a transaction in which the Borrower is the surviving corporation, (By) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), ) and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (Dz) any Subsidiary of the Borrower may be liquidatedsell, wound up transfer, lease or dissolved, or otherwise dispose of all or any part substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction to the Borrower or a series of transactionsSubsidiary Guarantor, to Borrower or any wholly-owned Subsidiary, and (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fiii) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationAcquisitions.
(b) Make Engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors (or other similar governing body a committee thereof) or the chief financial officer of the entity making such dispositionBorrower) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) shall not exceed (i) $20,000,000 10,000,000 in any fiscal year or (ii) $50,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Deltek, Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all of any division, unit or any substantial part of the assets business of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may lease, purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto thereafter no Event of Default or Default shall have occurred and be continuing or would result therefrom, (Ai) the merger of any wholly owned 120 AFFINION – A&R Credit Agreement Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Domestic Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)consideration, (Ciii) the merger or consolidation of any Foreign Subsidiary may merge that is not a Subsidiary Loan Party into or consolidate with any other Foreign Subsidiary, Subsidiary that is not a Subsidiary Loan Party or (Div) the liquidation or dissolution or change in form of entity of any Subsidiary may (other than the Borrower) in accordance with Section 5.01(a)(ii) if the Borrower determines in good faith that such liquidation, change in form or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party shall be liquidatedmade in compliance with Section 6.07 and the aggregate gross proceeds of any such sales, wound up transfers, leases or dissolved, other dispositions plus the aggregate gross proceeds of any or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofleased in reliance upon paragraph (h) below shall not exceed, in one transaction or a series any fiscal year of transactionsthe Borrower, to Borrower or any whollythe greater of $110,000,000 and 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-owned SubsidiaryBack Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(Ef) any Foreign Subsidiary may be liquidated, wound up swap of assets in exchange for services or dissolved, other assets in the ordinary course of business of comparable or all greater value or any part usefulness to the business of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions as a whole, as determined in good faith by the management of the Borrower, which in the event of a swap with a Fair Market Value in excess of (x) $15,000,000 shall be evidenced by a certificate from a Responsible Officer of the Borrower and (Gy) Holdings and $35,000,000 shall be set forth in a resolution approved in good faith by at least a majority of the Subsidiaries may engage in any Permitted Reorganization.Board of Directors of the Borrower;
(bg) Make any Asset Sale the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) aboveby this Section 6.05; provided, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant to in reliance upon this paragraph (h) plus the aggregate gross amount of such proceeds in reliance upon clause (i) in the proviso to Section 6.05(c) above shall not exceed exceed, in any fiscal year of the Borrower, the greater of $10,000,000;
(ii) sales110,000,000 and 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, transfers or other dispositions set forth further, that the Net Proceeds thereof are applied in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to accordance with Section 6.06(a2.11(b);
(vi) any Permitted Business Acquisition or merger or consolidation in order to effect a transaction permitted Permitted Business Acquisition; provided, that following any such merger or 121 AFFINION – A&R Credit Agreement consolidation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(j) non-exclusive licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary in the ordinary course of business and other licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary that are not material to the conduct of any of the business lines of the Borrower and the Subsidiaries, and the value of which does not constitute a material portion of the assets of the Borrower and its Subsidiaries, taken as a whole, and that are not material to the ordinary course of conduct of the business of the Borrower or any of its Subsidiaries;
(k) the lease, assignment or sublease of any real or personal property in the ordinary course of business;
(l) sales, leases or other dispositions of inventory, equipment or other assets (excluding Equity Interests, assets constituting a business division, unit, line of business, all or substantially all of the assets of any Material Subsidiary, Sale and Lease-Back Transactions and receivables) of the Borrower and the Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(m) the sale, transfer or other disposition by the Borrower or any of its Subsidiaries of the Netcentives Assets to Holdings or any Affiliate of Holdings on the Closing Date, including pursuant to Section 6.046.06(g);
(n) any Subsidiary Spin-off, to the extent Net Proceeds received are used to repay the Loans in accordance with Section 2.11(a) or, subject to Section 6.09, to repay or redeem the Senior Notes or the Senior Subordinated Notes; and
(vio) any sale of Equity Interests in, or other Asset Sale securities of, an Unrestricted Subsidiary. Notwithstanding anything to the contrary contained in Section 6.05 above, (xi) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (except as permitted to Loan Parties pursuant to Section 6.05(c)) unless such disposition is for consideration Fair Market Value, and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (d), (h) or (l) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided, that for purposes of which is cashclause (i), (y) such consideration is at least equal to the fair market value amount of any secured Indebtedness of the assets being sold, transferred, leased Borrower or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral other Indebtedness of a Subsidiary that is sold not a Loan Party (as permitted shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale transferee of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory and scrap, obsolete, excess and worn out assets in the ordinary course of business and business, (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Aw) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bx) 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 and no person other than the Borrower or a wholly owned Domestic Subsidiary receives any consideration consideration, (provided that if any party to y) Holdings may merge into ACP Holdings or the Borrower in a transaction in which the Borrower is the surviving corporation (in the case of any such transaction merger of Holdings into the Borrower) so long as concurrently with any merger of Holdings with and into the Borrower, or any merger of Holdings with and into ACP Holdings in which Holdings is a Loan Party, not the surviving entity corporation, ACP Holdings assumes all the obligations of Holdings under this Agreement and the other Loan Documents (including entering into a supplement to the Pledge Agreement to pledge 100% of the Capital Stock of the Borrower to the Collateral Agent for the benefit of the Secured Parties) and (z) following any merger described in clause (y), ACP Holdings may merge into ACP Products or the Borrower in a transaction in which the Borrower is the surviving corporation (in the case of any such transaction shall be merger of ACP Holdings into the Borrower) so long as concurrently with any merger of ACP Holdings with and into the Borrower, or any merger of ACP Holdings with and into ACP Products in which ACP Holdings is not the surviving corporation, ACP Products assumes all the obligations of ACP Holdings under this Agreement and the other Loan Documents (including entering into a Loan Partysupplement to the Pledge Agreement to pledge 100% of the Capital Stock of the Borrower to the Collateral Agent for the benefit of the Secured Parties), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fiii) the Borrower and the Subsidiaries any Subsidiary may make Permitted Acquisitions permitted by Section 6.04(g), (iv) the Borrower and any Subsidiary may make Consolidated Capital Expenditures permitted by Section 6.10 and (Gv) Holdings the Borrower and the Subsidiaries any Subsidiary may engage in any Asset Sale of capital stock or other assets acquired pursuant to a Permitted ReorganizationAcquisition permitted pursuant to Section 6.04(g).
(b) Make Neither the Borrower nor any Subsidiary shall engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 7585% of which is cash, (yii) such consideration is at least equal to the fair market value (as determined in good faith by the Borrower's board of directors) of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (as determined in good faith by the Borrower's board of directors or other similar governing body of the entity making such dispositiondirectors) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) (except for assets sold, transferred, leased or disposed of pursuant to Section 6.05(a)(v)) shall not exceed (i) $20,000,000 2,000,000 in any fiscal year or (ii) $10,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.SECTION
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sellliquidate or dissolve, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that for (i) the purchase and sale by the Borrower and or any Subsidiary may purchase and sell of inventory or the Disposition of obsolete or worn-out assets, assets that are no longer useful or scrap, in each case in the ordinary course of business business, (ii) the sale or discount by the Borrower or any Subsidiary, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing transaction), (iii) sales of accounts receivable or interests therein and other customary assets in Securitization Transactions permitted under Section 6.01(k), (iv) the Disposition by any Subsidiary that is not a Loan Party of its assets that do not constitute Collateral in connection with a foreclosure by the applicable lenders with respect to any Indebtedness of such Subsidiary to the extent that such assets are collateral security for such Indebtedness, (v) the licensing of intellectual property in the ordinary course of business, (vi) the settlement, release or surrender of tort or other litigation claims and (iivii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (Ax) the merger or consolidation of any wholly owned Subsidiary may merge into or with the Borrower in a transaction in which the Borrower is the surviving corporation, (By) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that (A) the Borrower shall own, directly or indirectly, beneficially and of record, Equity Interests representing a percentage of the aggregate ordinary voting power and aggregate equity value represented by the issued and outstanding Equity Interest in such surviving Subsidiary that is equal to or greater than the percentage of the aggregate ordinary voting power and the aggregate equity value represented by the issued and outstanding Equity Interests that were owned immediately prior to such merger or consolidation, directly or indirectly, beneficially and of record, by the Borrower in such other merged or consolidated Subsidiary, (B) if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) if any Foreign Subsidiary may merge into or consolidate with party to any other Foreign such transaction is a Domestic Subsidiary, the surviving entity of such transaction shall be a Domestic Subsidiary and (D) if any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction person other than the Borrower or a series wholly-owned Subsidiary receives any consideration in connection with such transaction, such transaction shall comply with the provisions of transactionsSection 6.04, to if applicable) and (z) Permitted Acquisitions or other Investments by the Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganizationthat are expressly permitted by Section 6.04.
(b) Make Engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (iA) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cashcash (and no portion of the remaining consideration shall be in the form of Indebtedness of the Borrower or any Subsidiary), (yB) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed Disposed of and (zC) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed Disposed of pursuant to this clause paragraph (vib)(i) shall not exceed (x) $20,000,000 2,000,000 in any fiscal year or (y) $7,500,000 in the aggregate. To the extent any Subsidiary aggregate or Collateral (ii) such Asset Sale is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingPermitted Asset Swap.
Appears in 1 contract
Samples: Credit Agreement (True Temper Sports PRC Holdings Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower may consummate the Merger, (ii) the Borrower and any Subsidiary may purchase and sell inventory and scrap, obsolete, excess and worn out assets in the ordinary course of business and business, (iiiii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Aw) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bx) 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 and no person other than the Borrower or a wholly owned Domestic Subsidiary receives any consideration consideration, (provided that if any party to y) Holdings may merge into ACP Holdings or the Borrower in a transaction in which the Borrower is the surviving corporation (in the case of any such transaction merger of Holdings into the Borrower) so long as concurrently with any merger of Holdings with and into the Borrower, or any merger of Holdings with and into ACP Holdings in which Holdings is a Loan Party, not the surviving entity corporation, ACP Holdings assumes all the obligations of Holdings under this Agreement and the other Loan Documents (including entering into a supplement to the Pledge Agreement to pledge 100% of the Capital Stock of the Borrower to the Collateral Agent for the benefit of the Secured Parties) and (z) following any merger described in clause (y), ACP Holdings may merge into ACP Products or the Borrower in a transaction in which the Borrower is the surviving corporation (in the case of any such transaction shall be merger of ACP Holdings into the Borrower) so long as concurrently with any merger of ACP Holdings with and into the Borrower, or any merger of ACP Holdings with and into ACP Products in which ACP Holdings is not the surviving corporation, ACP Products assumes all the obligations of ACP Holdings under this Agreement and the other Loan Documents (including entering into a Loan Partysupplement to the Pledge Agreement to pledge 100% of the Capital Stock of the Borrower to the Collateral Agent for the benefit of the Secured Parties), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fiv) the Borrower and the Subsidiaries any Subsidiary may make Permitted Acquisitions permitted by Section 6.04(g) and (Gv) Holdings the 77 71 Borrower and the Subsidiaries any Subsidiary may engage in any Permitted Reorganizationmake Consolidated Capital Expenditures permitted by Section 6.10.
(b) Make Neither the Borrower nor any Subsidiary shall engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 7585% of which is cash, (yii) such consideration is at least equal to the fair market value (as determined in good faith by the Borrower's board of directors) of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (as determined in good faith by the Borrower's board of directors or other similar governing body of the entity making such dispositiondirectors) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) shall not exceed (i) $20,000,000 1,000,000 in any fiscal year or (ii) $5,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Neenah Foundry Co)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person or any division, unit or business of any other person, except that this Section 7.05 shall not prohibit the following (collectively, “Permitted Dispositions”):
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and business, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (iv) the Disposition of Permitted Investments;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge of the Borrower into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge of the Borrower into or consolidate with any other wholly owned Subsidiary of the Borrower that is a Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary of the Borrower that is a Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than the Borrower or a wholly owned Subsidiary Loan Parties receives any consideration consideration, (provided iii) the merger, consolidation or amalgamation of any Subsidiary of the Borrower that if is not a Loan Party into or with any party to any such transaction other Subsidiary of the Borrower that is not a Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Loan Parties and is not materially disadvantageous to the Lenders or (v) the merger, consolidation or amalgamation of any Subsidiary with or into any other Person in order to effect an Investment permitted under Section 7.04 so long as the continuing or surviving person shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 6.10;
(c) sales, transfers, leases or other Dispositions to Borrower or any of its Subsidiaries (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Loan Party (C) any Foreign Subsidiary may merge into or consolidate with any other including, without limitation, a Foreign Subsidiary, ) in reliance on this clause (Dc) shall be made in compliance with Section 7.07 and the aggregate gross proceeds (including non-cash proceeds) of any Subsidiary may be liquidated, wound up or dissolved, or and all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, leased shall not in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value exceed, together with the aggregate gross proceeds of any or all assets sold, transferred, leased transferred or disposed of pursuant to this in reliance on clause (ig) shall not exceed of this Section 7.05, in any Fiscal Year, $10,000,0002,500,000;
(iid) [Reserved];
(e) Investments permitted by Section 7.04, Permitted Encumbrances and Restricted Payments permitted by Section 7.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers or other dispositions set forth Dispositions of assets not otherwise permitted by this Section 7.05 (or required to be included in Schedule 6.05;
this clause (iiig) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a7.05(c);
) (v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value than bulk sales or other Dispositions of the assets being sold, transferred, leased or disposed Inventory of and the Loan Parties not in the ordinary course of business in connection with Store closures); provided that (zi) the fair market value aggregate gross proceeds (determined in good faith by the board of directors or other similar governing body of the entity making such dispositionincluding non-cash proceeds) of any or all assets sold, transferred, leased transferred or otherwise disposed of pursuant to in reliance upon this clause (vig) in any Fiscal Year, together with the aggregate gross proceeds of any and all assets sold, transferred or disposed of, to Subsidiaries that are not Loan Parties in reliance on clause (c) of this Section 7.05, shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents2,000,000, and the Agents no Event of Default shall take all actions reasonably requested by the applicable Loan Party, at the sole cost have occurred and expense of the applicable Loan Party, in order to effect the foregoing.be continuing or would result therefrom;
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any SubsidiarySubsidiary or preferred equity interests of the Borrower (except to the extent that no cash interest or other cash payments are required in respect thereof), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section 6.05 shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell inventory sale of inventory, supplies, services, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iii) the sale or other disposition of Permitted Investments 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 continuing, (Ai) the merger or consolidation of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationPerson, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers the merger or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale consolidation of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "" "" IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "" ""
Appears in 1 contract
Samples: Credit Agreement (Fathom Digital Manufacturing Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate or amalgamate with it, or otherwise sell, transfer, lease or otherwise dispose (including to a Divided LLC pursuant to a Division) of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by any Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by any Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by any Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing or would result therefrom,
(Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge with or into the any Borrower in a transaction in which the Borrower is the surviving corporation, (B) or any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is such Borrower or, if a wholly owned Borrower is not a party to such transaction, a Subsidiary Loan Party, and no person other than the a Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;,
(provided ii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction Subsidiary that is not a Subsidiary Loan Party, ,
(iii) the surviving liquidation or dissolution or change in form of entity of any Subsidiary if the applicable Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of such Borrower and is not materially disadvantageous to the Lenders, or
(iv) any Subsidiary may merge, consolidate or amalgamate with or into any other person in order to effect an Investment permitted pursuant to Section 7.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party)Party if the merging, (C) any Foreign consolidating or amalgamating Subsidiary may merge into or consolidate was a Loan Party and which together with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part each of its businessSubsidiaries shall have complied with the requirements of Section 6.10;
(c) sales, property transfers, leases or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction other dispositions to a Borrower or a series of transactions, to Borrower Subsidiary (upon voluntary liquidation or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (c) shall be made in compliance with Section 7.07 and the aggregate gross proceeds of any such sales, transfers, leases or other dispositions plus the aggregate fair market value of any or all assets sold, transferred, leased leased, licensed or otherwise disposed of pursuant in reliance on clause (g) below, shall not exceed, in any fiscal year of the Borrowers, $5,000,000;
(d) Sale and Lease Back Transactions permitted by Section 7.03;
(e) Investments permitted by Section 7.04 and Permitted Liens and Restricted Payments permitted by Section 7.06;
(f) the sale or other disposition of defaulted receivables and the compromise, settlement and collection of receivables in the ordinary course of business or in bankruptcy or other proceedings concerning the other account party thereon and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section 7.05 (or required to be included in this clause (ig) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a7.05(c);
); provided that (vi) in a transaction permitted pursuant to Section 6.04; and
the aggregate gross proceeds (viincluding non-cash proceeds) of any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the or all assets being sold, transferred, leased leased, licensed or otherwise disposed of in reliance upon this clause (g) shall not exceed, in any fiscal year of the Borrowers, $10,000,000 and (zii) no Default or Event of Default exists or would result therefrom;
(h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that following any such merger, consolidation or amalgamation (i) involving a Borrower, such Borrower is the surviving corporation or such merger, consolidation or amalgamation shall otherwise satisfy the requirements of subsection (b)(i) above and (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(i) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of any Borrower and its Subsidiaries determined by the management of such Borrower to be no longer useful or necessary in the operation of the business of such Borrower or any of its Subsidiaries;
(k) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract tort or other claims of any kind to the extent that any of the foregoing could not reasonably be expected to have a Material Adverse Effect;
(l) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the board applicable Borrower) in excess of directors $2,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of such Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the applicable Borrower) in excess of $5,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of the applicable Holdco or such Borrower; provided that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (n) shall not exceed, in any fiscal year of the Borrowers, $10,000,000 and (B) no Default or Event of Default exists or would result therefrom;
(m) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other similar governing body obligation with or to a person (other than each Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition) in a Permitted Business Acquisition, made as part of such acquisition and in each case comprising all or a portion of the entity making consideration in respect of such sale or acquisition;
(n) any merger, consolidation, conveyance, transfer, lease or other disposition of the Equity Interests of, or undertaken by, Wise Alloys Finance Corporation or Listerhill Total Maintenance Center, LLC, so long as the assets attributable to such entities do not have a book value or fair market value in an aggregate amount in excess of $4,000,000 measured at the time of each such disposition; and
(o) with respect to any Receivables Subsidiary, the sale of all or substantially all of the applicable receivables of such Receivables Subsidiary in one or more transactions pursuant to any Qualified Receivables Financing. Notwithstanding anything to the contrary contained in Section 7.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 7.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) of this Section 7.05 or any Sale and Lease Back Transaction permitted by Section 7.03(b)) unless such disposition is for fair market value (as determined in good faith by the applicable Borrower), or if not fair market value, the shortfall is permitted as an Investment under Section 7.04, (ii) no sale, transfer or other disposition of assets in excess of $1,000,000 shall be permitted by paragraph (g) of this Section 7.05 unless such disposition is for at least 75% cash consideration; provided that, for purposes of this clause (ii), (a) the amount of any liabilities (as shown on any Borrower’s or any Subsidiary’s most recent balance sheet delivered pursuant to Section 6.04(c)) of any Borrower or any Subsidiary of any Borrower (other than liabilities that are by their terms subordinated to the ABL Credit Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by such Borrower or such Subsidiary of such Borrower from such transferee that are converted by such Borrower or such Subsidiary of such Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by such Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration received pursuant to this clause (vic) that is at that time outstanding, not to exceed $5,000,000 at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value (as determined in good faith by the applicable Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall not exceed $20,000,000 be deemed to be cash and (iii) in respect of any sale, transfer or other disposition of Accounts and/or Inventory made in any case outside of the aggregateordinary course of business of any Borrower or any other applicable Loan Party, such Borrower shall notify the Administrative Agent thereof in writing and the amount set forth in clause (x) of the definition of “Borrowing Base” shall be reduced by the Net Proceeds thereof until receipt by the Administrative Agent of the next Borrowing Base Certificate delivered pursuant to Section 6.13 hereof. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.057.05 to any Person other than the Holdcos, the Borrowers or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Constellium SE)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of the assets of the Borrower (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business business, (ii) the Borrower or any wholly owned Subsidiary may make Permitted Acquisitions, and (iiiii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ax) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, corporation and (By) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary (or, in order to consummate a Permitted Acquisition, any other person) in a transaction in which the surviving entity is a wholly owned Subsidiary and (except in the case of Permitted Acquisitions) no person other than the Borrower or a wholly owned Subsidiary receives any consideration (consideration, provided that if any party to any such transaction is merger described in this clause (y) shall involve a Loan PartyDomestic Subsidiary, the surviving entity of such transaction merger shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Domestic Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make Engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cashcash (provided that such 75% requirement shall not apply to any Asset Sale constituting the sale of a business unit if the cash portion of the consideration received therefor is no less than an amount equal to the product of (A) six and (B) the amount of EBITDA for the preceding fiscal year directly attributable to the assets included in such Asset Sale), (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of after the Restatement Date pursuant to this clause paragraph (vib) shall not exceed (i) $20,000,000 10,000,000 in any fiscal year or (ii) $15,000,000 in the aggregate. To the extent .
(c) Wind up, liquidate or dissolve its affairs, except that any Inactive Subsidiary may be wound up, liquidated or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingdissolved.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person or any division or business unit of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge of the Borrower into or with the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary that is a Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party)Party if the merging, (C) any Foreign consolidating or amalgamating Subsidiary may merge into or consolidate was a Loan Party and which together with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part each of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and shall have complied with the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in requirements of Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,0005.10;
(iic) sales, transfers transfers, leases or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being soldBorrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, transferredthat any sales, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors transfers, leases or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted dispositions by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold a Loan Party to a Subsidiary that is not a Subsidiary Loan PartyParty in reliance on this paragraph (c) shall be sold free made in compliance with Section 6.07 and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, be included in order to effect the foregoing.Section 6.05(h);
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, or liquidate or dissolve, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or with the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.09;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 6.07 and the aggregate gross proceeds of any Foreign Subsidiary may merge into such sales, transfers, leases or consolidate with other dispositions plus the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed ofof in reliance on clause (g) below, shall not exceed, in one transaction any fiscal year of the Borrower, the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such sale, transfer, lease or other disposition for which financial statements have been delivered pursuant to Section 5.04 (determined based on the balance sheet so delivered for such prior fiscal year);
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06;
(f) the sale or other disposition of defaulted receivables and the compromise, settlement and collection of receivables in the ordinary course of business or in bankruptcy or other proceedings concerning the other account party thereon and not as part of a series Permitted Securitization Financing;
(g) sales, transfers, leases, licenses or other dispositions of transactionsassets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, to Borrower or that (i) the aggregate gross proceeds (including noncash proceeds) of any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed of, of in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under reliance upon this paragraph (a) aboveg), except:
(i) in a transaction referred to in Section 6.03; provided that plus the aggregate fair market value gross proceeds of any or all assets sold, transferred, leased or otherwise disposed of to Subsidiaries that are not Loan Parties in reliance on clause (c) above, shall not exceed, in any fiscal year of the Borrower, the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such sale, transfer, lease, license or other disposition for which financial statements have been delivered pursuant to this clause Section 5.04 (i) shall not exceed $10,000,000;
determined based on the balance sheet so delivered for such prior fiscal year), (ii) salesno Default or Event of Default exists or would result therefrom, transfers or other dispositions set forth in Schedule 6.05;
(iii) with respect to any Permitted Reorganization;
such sale, transfer, lease or other disposition with aggregate gross proceeds (ivincluding noncash proceeds) Restricted Payments permitted pursuant to in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (iviii ) the Net Proceeds thereof are applied in accordance with Section 6.06(a2.11(b);
(vh) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Subsidiary that is not a Loan Party, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) the sale or other transfer of Securitization Assets or interests therein pursuant to a Permitted Securitization Financing;
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the swap with a fair market value (as determined in good faith by the board Borrower) in excess of directors $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance on this paragraph (m) shall not exceed, in any fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such exchange transaction for which financial statements have been delivered pursuant to Section 5.04 (determined based on the balance sheet so delivered for such prior fiscal year), (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other similar governing body obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the entity making consideration in respect of such dispositionsale or acquisition;
(o) [reserved];
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) any disposition of Permitted Investments in connection with the Arbitrage Programs;
(r) sales or other dispositions of Equity Interests in Existing Joint Ventures;
(s) any grant of a license or sublicense in the ordinary course of business under any Intellectual Property Rights or franchise rights; and
(t) the purchase and sale of assets in the ordinary course of the relocation services business of the Borrower or any Subsidiary. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by clause (g) or (m) of this Section 6.05 unless such disposition is for fair market value (as determined in good faith by the Borrower) and (ii) no sale, transfer or other disposition of assets in excess of $40.0 million shall be permitted by paragraph (d) or (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that for purposes of clause (ii), (a) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration received pursuant to this clause (vic) that is at that time outstanding, not to exceed $50.0 million at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall not exceed $20,000,000 in the aggregatebe deemed to be cash. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.056.05 to any person other than Holdings, the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 1 contract
Samples: Amendment to Credit Agreement (Anywhere Real Estate Group LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, Restricted Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personCompany, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Company or any Restricted Subsidiary, (ii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company or any Restricted Subsidiary, (iii) the leasing or subleasing of real property in the ordinary course of business by the Company or any Restricted Subsidiary or (iv) the sale of or other disposition of Permitted Investments 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 continuing, (i) the merger of any Restricted Subsidiary of Holdings (which shall either be (A) any wholly owned newly formed expressly for the purpose of such transaction and which owns no assets or (B) a Restricted Subsidiary may merge of the Company) into the Borrower Company in a transaction in which the Borrower Company is the surviving corporationor resulting entity or the surviving or resulting person expressly assumes the obligations of the Company in a manner reasonably satisfactory to the Administrative Agent, (ii) the merger or consolidation of any Restricted Subsidiary with or into any other Restricted Subsidiary; provided that in a transaction involving (A) the Company or (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, a Subsidiary Loan Party shall be the surviving entity of or resulting person or such transaction shall be an Investment permitted by Section 6.04 or (iii) the liquidation or dissolution of any Restricted Subsidiary (other than the Company) or change in form of entity of any Restricted Subsidiary if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company;
(c) sales, transfers, leases or other dispositions to the Company or a Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party)Party to a Subsidiary that is not a Subsidiary Loan Party shall be made in compliance with Section 6.04 and Section 6.07;
(d) Sale and Lease-back Transactions; provided that the Net Proceeds thereof are applied in accordance with Section 2.11;
(e) Liens permitted by Section 6.02, Investments permitted by Section 6.04, and dividends, distributions, redemptions and repurchases permitted by Section 6.06;
(Cf) any Foreign Subsidiary may merge into the sales, transfers or consolidate with any other Foreign Subsidiarydispositions of receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, (D) any Subsidiary may be liquidatedtransfers, wound up leases or dissolved, or all other dispositions of assets by the Company or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Restricted Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed during any fiscal year $10,000,00025.0 million with any unused amount to be carried forward to the succeeding 730 days; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11;
(iih) sales, transfers transfers, leases or other dispositions set forth by the Company or any Restricted Subsidiary of assets that were acquired in Schedule 6.05connection with an acquisition permitted hereunder (including, without limitation, Permitted Business Acquisitions); provided that (i) any such sale, transfer, lease or other disposition shall be made or contractually committed to be made within 365 days of the date such assets were acquired by the Company or such Restricted Subsidiary; (ii) on a Pro Forma Basis for such disposition of a line of business or manufacturing facility and the consummation of such Permitted Business Acquisition, either (x) the Total Leverage Ratio shall not exceed 5.00:1.00 or (y) the Total Leverage Ratio is lower that it was immediately prior to such sale, transfer, lease or other disposition and (iii) the Net Proceeds thereof are applied in accordance with Section 2.11;
(i) any merger or consolidation in connection with an Investment permitted under Section 6.04 (including any Subsidiary Redesignation or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary); provided that (i) if the continuing or surviving person is a Restricted Subsidiary, such Restricted Subsidiary shall have complied with its obligations under Section 5.09, (ii) in the case of a transaction, the purpose of which is a Subsidiary Redesignation or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, such transaction must be consummated in compliance with Section 6.04, and (iii) any Permitted Reorganizationif the Company is a party thereto, the Company shall be the continuing or surviving person or the continuing or surviving person shall assume the obligations of the Company in a manner reasonably acceptable to the Administrative Agent;
(ivj) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Company or any Restricted Payments Subsidiary in the ordinary course of business;
(k) sales, leases or other dispositions of inventory of the Company and its Restricted Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any of its Restricted Subsidiaries;
(l) Permitted Business Acquisitions;
(m) the issuance of Junior Equity Capital by the Company or Holdings;
(n) sales of Equity Interests of any Subsidiary of the Company; provided that, (x) in the case of the sale of the Equity Interests of a Subsidiary Loan Party, the purchaser shall be the Company or another Subsidiary Loan Party or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(d)) and (y) in the case of the sale of the Equity Interests of a Restricted Subsidiary, the purchaser shall be the Company or another Restricted Subsidiary or such transaction shall fit within another clause of this Section 6.05 or constitute an Investment permitted by Section 6.04 (other than Section 6.04(d));
(o) sales, transfers, leases and other dispositions of property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such sale, transfer, lease or other disposition are promptly applied to the purchase price of such replacement property;
(p) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of the Company and its Restricted Subsidiaries;
(q) transfers of property subject to casualty or condemnation proceeding (including in lieu thereof) upon receipt of the Net Proceeds therefor; provided, that the Net Proceeds thereof are applied in accordance with Section 2.11;
(r) sales, transfers, leases and other dispositions of property in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Company, are not material to the conduct of the business of the Company and its Restricted Subsidiaries;
(s) sales, transfers, leases and other dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to to, buy/sell arrangements between the joint venture parties set forth in, joint venture arrangements and similar binding arrangements; provided, that the Net Proceeds thereof are applied in accordance with Section 6.06(a)2.11;
(t) sales, transfers, leases and other dispositions of real property and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, or consultants of the Company and its Restricted Subsidiaries;
(u) voluntary terminations of Swap Agreements;
(v) the expiration of any option agreement in a transaction permitted pursuant to Section 6.04; andrespect of real or personal property;
(viw) any sales, transfers, leases and other Asset Sale dispositions of Unrestricted Subsidiaries;
(x) for consideration at least 75% any Restricted Subsidiary of the Company may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is cashto effect a sale, lease, transfer or other disposition of assets otherwise permitted under this Section 6.05; (y) such consideration is at least equal to the fair market value of the assets being soldsales, transferredtransfers, leased or disposed of leases and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as dispositions permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this 6.04 (other than Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral 6.04(p)) and Section 6.06 (unless sold to a Loan Partyother than Section 6.06(h)) shall be sold free and clear of the Liens created permitted by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.Section 6.02;
Appears in 1 contract
Samples: Credit Agreement (Edwards Group LTD)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or liquidate or dissolve, or sell, transfer, lease lease, issue or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that for (i) sales, transfers, leases, issuances and other dispositions of assets not constituting an Asset Sale pursuant to the definition thereof and Asset Sales permitted under the terms and conditions of Section 6.05(b), (ii) the purchase and sale by the Borrower and or any Subsidiary may purchase of capacity and sell inventory energy in the ordinary course of business business, (iii) the sale or discount by the Borrower or any Subsidiary in each case without recourse and in accordance with customary practices of overdue accounts receivable arising in accordance with customary practices, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing transaction) and (iiiv) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (Ax) the merger or consolidation of any wholly owned Subsidiary may merge into or with the Borrower in a transaction in which the Borrower is the surviving corporation, (By) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolvedconsideration, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board conveyance of directors all or other similar governing body substantially all of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingBorrower.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into Merge, amalgamate or consolidate with or into any other person, or permit any other person to merge into merge, amalgamate or consolidate with or into it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) as part of any Asset Sale all or substantially all of the assets of a Loan Party (whether now owned or hereafter acquired) of the Borrower or less than all or substantially all of the Equity Interests of any SubsidiaryLoan Party (in each case, whether now owned or hereafter acquired), or purchase, lease liquidate or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other persondissolve, except that (a) the U.S. Borrower may merge, amalgamate or consolidate with any person provided that (i) the Borrower and any Subsidiary may purchase and sell inventory no Change in the ordinary course of business Control occurs and (ii) if at the time thereof and immediately after giving effect thereto to any such proposed transaction no Default or Event of Default or Default shall have occurred would exist, and be continuing (Aiii) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the U.S. Borrower is the surviving corporationentity, (Bb) the U.S. Borrower may merge or amalgamate with any of its wholly owned Subsidiaries, provided that immediately after giving effect to any such proposed transaction no Default would exist and the U.S. Borrower is the surviving entity, (c) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary (or, in order to consummate a Permitted Acquisition, any other person) in a transaction in which the surviving entity is a wholly owned Subsidiary and (except in the case of Permitted Acquisitions) no person other than the Borrower Borrowers or a wholly owned Subsidiary receives any consideration (consideration, provided that (i) the requirements of Section 6.04(i) are met with respect to such merger described in this clause (c) and (ii) if any party to any such transaction is merger described in this clause (c) shall involve a Loan Party, the surviving entity of such transaction merger shall be or become a Loan Party), Party and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (Dd) any Subsidiary of the U.S. Borrower may be liquidated, wound up liquidate or dissolved, dissolve if the U.S. Borrower determines in good faith that such liquidation or all or any part dissolution is in the best interests of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the U.S. Borrower and is not materially disadvantageous to the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationLenders.
(ba) Make Engage in any Asset Sale not otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of of, and (zii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) after the Closing Date shall not exceed $20,000,000 7.5% of Consolidated Net Worth calculated on the date of incurrence as of the most recent fiscal quarter for which financial statements are available in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii1) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have has occurred and be is continuing or would result therefrom:
(Aa) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor;
(b) the merger, (B) consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party; and, in the case of each of the foregoing clause (a) and this clause (b), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;
(provided c) the merger, consolidation or amalgamation of any Restricted Subsidiary that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary that is not a Loan Party, the surviving entity of such transaction shall be a Loan Party), ;
(Cd) any Foreign Subsidiary may merge into transfer of inventory among the Borrower and its Restricted Subsidiaries or consolidate with between Restricted Subsidiaries and any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part transfer of its business, property or assets may be conveyed, sold, leased, transferred among the Borrower and its Restricted Subsidiaries or otherwise disposed ofbetween Restricted Subsidiaries, in one transaction each case, in the ordinary course of business;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if a series Responsible Officer of transactionsthe Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; or
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment so long as the continuing or surviving Person will be a Subsidiary Loan Party if the merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10;
(2) any sale, transfer or other disposition if:
(a) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(b) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of the Borrower in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of the Borrower or any wholly-owned Subsidiarythe Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), (E) any Foreign Subsidiary may be liquidatedother than liabilities that are by their terms subordinated in right of payment to the Obligations, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, that are assumed by the transferee with respect to any Foreign Subsidiary, (F) the applicable disposition and for which the Borrower and the Restricted Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage have been validly released by all applicable creditors in any Permitted Reorganization.writing;
(bii) Make any Asset Sale otherwise permitted under paragraph securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (ato the extent of the cash received) above, except:within 180 days following the closing of the applicable disposition; and
(iiii) any Designated Non-Cash Consideration received in a transaction referred to in Section 6.03respect of such disposition; provided that the aggregate fair market value of all assets soldsuch Designated Non-Cash Consideration, transferredas determined by a Responsible Officer of the Borrower in good faith, leased or disposed of taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iiii) shall that is then outstanding, does not exceed the greater of (A) $10,000,000;
125.0 million and (iiB) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 751.50% of which Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is cashreceived, (y) such consideration is at least equal to with the fair market value of each item of Designated Non-Cash Consideration being measured at the assets being soldtime received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory in the ordinary course of business; (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business; (c) the sale of surplus, transferredobsolete, leased damaged or disposed worn out equipment or other property in the ordinary course of business; or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) Sale and Lease-Back Transactions permitted by Section 6.03;
(5) Investments permitted by Section 6.04, Permitted Liens, and Restricted Payments permitted by Section 6.06;
(6) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(7) Permitted Acquisitions, including any merger, consolidation or amalgamation in order to effect a Permitted Acquisition; provided that following any such merger, consolidation or amalgamation: (a) involving the Borrower Party, the Borrower Party is the surviving corporation; and (zb), immediately before and immediately after such transaction, the Payment Conditions are satisfied;
(8) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(9) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary;
(10) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(11) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any Restricted Subsidiary that is not in contravention of Section 6.08; or
(12) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value (value, as determined by a Responsible Officer of the Borrower in good faith by the board faith, of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed more than $20,000,000 in the aggregate10.0 million. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.056.05 to any Person other than Holdings, a Borrower Party or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralGuarantor, such Subsidiary or Collateral (unless sold to a Loan Party) shall will be sold free and clear of the Liens created by the Security Loan Documents, and the Agents shall take all Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing, in each case, in accordance with Section 10.18.
Appears in 1 contract
Samples: Revolving Credit Agreement (Neiman Marcus Group LTD Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower Borrower, or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except provided, however, that (i) the Borrower and any Subsidiary may purchase and sell Hydrocarbons and other inventory in the ordinary course of business business, and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided further that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary the Borrower and the Subsidiaries may merge into or consolidate make Permitted Business Investments in accordance with any other Foreign SubsidiarySection 6.04, and (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (GMLP Transfers pursuant to Section 6.05(c) Holdings and the Subsidiaries may engage in any Permitted Reorganizationbelow.
(b) Make Engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (xA) involves the sale, transfer, lease or other disposition of Hydrocarbon Interests for consideration that consists of Hydrocarbon Interests or a combination of Hydrocarbon Interests and cash or (B) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of, and (iii) the Net Cash Proceeds are applied in accordance with the definition of such term and the provisions of Section 2.13.
(c) Engage in any MLP Transfer other than (i) an MLP Asset Transfer in which (A) the assets so transferred are limited to physical non-production assets (e.g., gathering lines, processing facilities and pipelines), (B) the Borrower shall have notified the Administrative Agent reasonably prior to such MLP Asset Transfer of the principal terms and conditions thereof, (C) such MLP Asset Transfer is for Fair Market Value, (D) such MLP Asset Transfer is for consideration consisting of (x) not less than 30% in cash, (y) not more than 51% in Equity Interests (other than Convertible Equity) in the applicable MLP (provided that, solely in respect of the Equity Interests so received by the Borrower or the Subsidiaries in connection with such MLP Asset Transfer, (i) not more than 49% of the Equity Interests in the applicable MLP shall consist of LP Equity Interests and (ii) not more than 2% of the Equity Interests in the applicable MLP shall consist of GP Equity Interests; provided further that the percentages set forth in clauses (i) and (ii) above may be changed upon the Borrower’s request to the extent reasonably satisfactory to the Administrative Agent) and (z) Convertible Equity for the fair remaining portion; and (E) the other terms and conditions and any related agreements or arrangements are (x) consistent with the market value (practice, if any, for MLP Transfers of such type, as determined in good faith by the board of directors Borrower, and (y) reasonably acceptable to the Agent (such an MLP Asset Transfer, a “Permitted MLP Asset Transfer”); (ii) a sale, transfer or other similar governing body disposition of any Equity Interest in a Permitted MLP by the Borrower or any Subsidiary in which (A) the consideration is 100% in cash, and (B) such consideration is at least equal to the Fair Market Value of the entity making such disposition) of all assets Equity Interest being sold, transferred, leased transferred or otherwise disposed of pursuant (“a Permitted MLP Equity Transfer”); (iii) a sale, transfer or other disposition of any Equity Interest in a Permitted LP by the Borrower or any Subsidiary in which (A) the consideration is 100% in cash, and (B) such consideration is at least equal to the Fair Market Value of the Equity Interest being sold, transferred or otherwise disposed of (a “Permitted LP Equity Transfer”); and (iv) a sale, transfer or other disposition of any Equity Interest in a Permitted GP by the Borrower or any Subsidiary in which (A) the consideration is 100% in cash, and (B) such consideration is at least equal to the Fair Market Value of the Equity Interest being sold, transferred or otherwise disposed of (a “Permitted GP Equity Transfer”, and as well as Permitted MLP Asset Transfers, Permitted MLP Equity Transfers and Permitted LP Transfers, also referred to as a “Permitted MLP Transfer”); in each case provided that (i) at the time of such MLP Transfer and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing and (ii) the Net Cash Proceeds are applied in accordance with the definition of such term and the provisions of Section 2.13. For avoidance of doubt, the parties agree that in determining whether the conditions set forth in this clause (vic) shall are met, such conditions need not be met at any individual stage of transfers involved in such MLP Asset Transfer so long as such conditions are met upon the completion of such MLP Asset Transfer within a reasonable period of time not to exceed $20,000,000 in the aggregate. To the extent any Subsidiary forty-five days (or Collateral such longer period of time as is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect satisfactory to the sale of any Subsidiary Administrative Agent), whether accomplished in one step or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingmultiple steps.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)consideration, (Ciii) the merger or consolidation of any Foreign Subsidiary may merge that is not a Subsidiary Loan Party into or consolidate with any other Foreign Subsidiary, Subsidiary that is not a Subsidiary Loan Party or (Div) the liquidation or dissolution or change in form of entity of any Subsidiary may be liquidated, wound up (other than the Borrower) if the Borrower determines in good faith that such liquidation or dissolved, or all or any part dissolution is in the best interests of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and is not materially disadvantageous to the Subsidiaries may make Permitted Acquisitions and Lenders;
(Gc) Holdings and sales, transfers, leases or other dispositions to the Subsidiaries may engage Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party shall be made in compliance with Section 6.07; provided, further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance upon this paragraph (c) shall not exceed, in any Permitted Reorganization.fiscal year of the Borrower, $35 million;
(bd) Make any Asset Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed exceed, in any fiscal year of the Borrower, the greater of $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted 100 million and 10.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 6.06(a5.04; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(vh) any merger or consolidation in connection with a transaction permitted pursuant Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to Section 6.04be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; and
(vik) any the purchase and sale or other Asset Sale transfer (xincluding by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b). Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets in excess of $3.5 million shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for consideration fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% of which is cash, (y) such cash consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors no sale, transfer or other similar governing body disposition of the entity making such disposition) assets in excess of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) $3.5 million shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions paragraph (g) of this Section 6.05 with respect to unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (ii) and (iii), the sale amount of any secured Indebtedness or other Indebtedness of a Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to that is not a Loan PartyParty (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 1 contract
Samples: Credit Agreement (PQ Systems INC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that (i) the Borrower and any Subsidiary (other than an Inactive Subsidiary or Finsub) may purchase and sell inventory in the ordinary course of business business, (ii)(A) the Borrower and any Subsidiary (other than an Inactive Subsidiary) may sell Program Receivables to Finsub and (iiB) Finsub may sell Program Receivables pursuant to the Receivables Program Documentation and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary (other than Finsub) may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary (other than Finsub) may merge into or consolidate with any other wholly owned Subsidiary that is a Subsidiary Guarantor in a transaction in which the surviving entity is a wholly owned Subsidiary that is a Subsidiary Guarantor and no person other than the Borrower or a wholly owned Subsidiary that is a Subsidiary Guarantor receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)consideration, (C) in connection with any Foreign Permitted Acquisition pursuant to Section 6.04(d), the Borrower or any wholly owned Subsidiary that is a Subsidiary Guarantor may acquire or merge into or consolidate with any other Foreign Subsidiary, entity acquired pursuant to such Permitted Acquisition in a transaction in which the surviving entity is the Borrower or a wholly owned Subsidiary that is a Subsidiary Guarantor and (D) any Subsidiary following the initial Powerscreen Borrowing, the Borrower may be liquidated, wound up or dissolvedcontribute, or otherwise transfer, all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, the equity in one transaction or a series of transactions, Terex Equipment Limited (other than directors' qualifying shares) to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationBidco.
(b) Make Engage in any Asset Sale not otherwise permitted under paragraph (aprohibited by Section 6.05(a) above, except:
unless all of the following conditions are met: (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration received is at least equal to the fair market value of such assets; (ii) at least 80% of the assets being sold, transferred, leased or disposed of and consideration received is cash; (ziii) the fair market value Net Cash Proceeds of such Asset Sale are applied as required by Section 2.13(a); (determined in good faith by the board of directors or other similar governing body of the entity making such dispositioniv) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect after giving effect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear other disposition of the Liens created by assets included within the Security Documents, Asset Sale and the Agents repayment of Indebtedness with the proceeds thereof, the Borrower is in compliance on a pro forma basis with the covenants set forth in Sections 6.11, 6.12 and 6.13 recomputed for the most recently ended fiscal quarter for which information is available and is in compliance with all other terms and conditions contained in this Agreement; and (v) no Default or Event of Default shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingresult from such Asset Sale.
Appears in 1 contract
Samples: Credit Agreement (Terex Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of Intermediate Holdings, the U.S. Borrower or any SubsidiarySubsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the U.S. Borrower or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the U.S. Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger of Intermediate Holdings (or the surviving entity of any wholly owned merger of Intermediate Holdings and Holdings) with the U.S. Borrower, (ii) the merger of Intermediate Holdings (or the surviving entity of any merger of Intermediate Holdings and the U.S. Borrower) with Holdings, (iii) the merger of any Subsidiary may merge into the a Borrower in a transaction in which the such Borrower is the surviving corporation, (Biv) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (iii) and (iv), no person other than a Borrower or Subsidiary Loan Party receives any consideration, (v) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (vi) the liquidation or dissolution of any Subsidiary (other than a Borrower) if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower or a wholly owned Subsidiary receives any consideration (upon voluntary liquidation or otherwise); provided that if any party to any such transaction is sales, transfers, leases or other dispositions by a Loan PartyParty to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) investments expressly permitted by Section 6.04;
(f) the purchase, sale or other transfer of accounts receivable and related assets pursuant to the Permitted Receivables Financing;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (other than the note evidencing or any right to payment in respect of the Intermediate Holdings Loan or the Fxxxx Loan), provided that such sale does not constitute a sale of all or substantially all the assets of Holdings, Intermediate Holdings, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the U.S. Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) aboveSubsidiaries, except:taken as a whole;
(i) any merger or consolidation in connection with a transaction referred to in Section 6.03; Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary; and
(j) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a Subsidiary in the ordinary course of business. Notwithstanding anything to the contrary contained above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate Holdings (or the surviving entity in any merger of Intermediate Holdings and the U.S. Borrower pursuant to Section 6.05(b)), unless and until such time as Intermediate Holdings (or such surviving entity) is merged with Holdings pursuant to Section 6.05(b), (ii) Intermediate Holdings (or the surviving entity in any merger of Intermediate Holdings and Holdings pursuant to Section 6.05(b)) shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, unless and until such time as Intermediate Holdings (or such surviving entity) is merged with the U.S. Borrower pursuant to Section 6.05(b), (iii) each Foreign Subsidiary Borrower and Fxxxx shall be a Wholly Owned Subsidiary, (iv) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (v) no sale, transfer or other disposition of assets shall be permitted by paragraphs (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (vi) no sale, transfer or other disposition of assets in excess of $250,000,000 shall be permitted by paragraph (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration; ; provided, however, that for purposes of clause (vi) of this sentence, (A) the assumption by the transferee of liabilities associated with the assets subject to any sale, transfer or other disposition shall not be deemed to be consideration paid in respect of such assets and (B) any Designated Non-Cash Consideration received by the U.S. Borrower or any Subsidiary in respect of any such sale, transfer or other disposition (valued at the time of receipt thereof, and without giving effect to any write-downs or write-offs thereof) having an aggregate fair market value of value, taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration previously applied pursuant to this clause (iB) shall less the Net Proceeds of any subsequent sale of any such Designated Non-Cash Consideration, not to exceed $10,000,000;
the greater of (iix) sales2.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfers transfer or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted disposition for which financial statements have been delivered pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, 5.04 and (y) $100,000,000, shall be deemed to constitute “cash consideration” received in respect of such consideration is at least equal to the fair market value of the assets being soldsale, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors transfer or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease lease, license, abandon, cancel, permit to lapse, or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ax) any wholly owned Subsidiary may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation, (By) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (consideration; provided that if any party to any such transaction is merger described in this clause (y) shall involve a Loan PartySubsidiary Guarantor, the surviving entity of such transaction merger shall be a Loan Party), Subsidiary Guarantor and (Cz) any Foreign Subsidiary Holdings may merge with or into the Borrower in a transaction in which no person other than Holdings or consolidate with the Borrower receives any consideration other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofthan, in one transaction the case of the stockholders of Holdings, consideration consisting solely of the Equity Interests of the surviving corporation (following which all references to Holdings or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and shall mean the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganizationsurvivor of such merger).
(b) Make Engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) shall not exceed $20,000,000 50,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingfiscal year.
Appears in 1 contract
Samples: Secured Debtor in Possession Credit Agreement (Buffets Holdings, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing or would result therefrom,
(Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge or any other Person with or into the Borrower (x) in a transaction in which the Borrower is the survivor or (y) in a transaction in which the Borrower is not the survivor (such surviving corporationperson, the “Successor Borrower”); provided that (A) such transaction shall not cause the Borrower to fail to be in compliance, on a Pro Forma Basis, with the Senior Secured Leverage Ratio Test, (B) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any wholly owned state thereof, the District of Columbia or any territory thereof, (C) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (D) each guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall confirm that its guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (E) each guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Collateral Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and/or its Guarantee thereof, as applicable, (F) each mortgagor of the Mortgaged Property, unless it is the other party to such merger, consolidation or amalgamation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under this Agreement and/or its Guarantee thereof, as applicable, and (G) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, consolidation or amalgamation and such supplement to this Agreement or any Security Document comply with this Agreement; provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement,
(ii) the merger, consolidation or amalgamation of any Subsidiary may merge with or into the Borrower or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is the Borrower or, if the Borrower is not a wholly owned party to such transaction, a Subsidiary Loan Party, and no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration,
(provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction Subsidiary that is not a Subsidiary Loan Party, ,
(iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, or
(v) any Subsidiary may merge, consolidate or amalgamate with or into any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 6.07 and the aggregate gross proceeds of any Foreign Subsidiary may merge into such sales, transfers, leases or consolidate with other dispositions plus the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed ofof in reliance on clause (g) below, shall not exceed, in one transaction any fiscal year of the Borrower, the greater of (x) $50.0 million and (y) 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease or a series other disposition for which financial statements have been delivered pursuant to Section 3.05 or 5.04, as applicable;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06;
(f) the sale or other disposition of transactionsdefaulted receivables and the compromise, to Borrower settlement and collection of receivables in the ordinary course of business or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up in bankruptcy or dissolved, or all or any other proceedings concerning the other account party thereon and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted under paragraph by this Section 6.05 (aor required to be included in this clause (g) abovepursuant to Section 6.05(c)); provided, except:
that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased , licensed or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed exceed, in any fiscal year of the Borrower, the greater of (x) $10,000,000;
75.0 million and (y) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease, license or other disposition for which financial statements have been delivered pursuant to Section 3.05 or 5.04, as applicable, (ii) sales, transfers no Default or other dispositions set forth in Schedule 6.05;
Event of Default exists or would result therefrom and (iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to the Net Proceeds thereof are applied in accordance with Section 6.06(a2.11(b);
(vh) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a transaction permitted Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation (i) involving the Borrower, the Borrower is the surviving corporation or such merger, consolidation or amalgamation shall otherwise satisfy the requirements of subsection (b)(i) above and (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(i) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b) (without duplication of any amounts applied in accordance with Section 2.11(b) pursuant to Section 6.04; and6.01(v));
(vim) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract tort or other Asset Sale claims of any kind to the extent that any of the foregoing could not reasonably be expected to have a Material Adverse Effect;
(xn) any exchange of assets for consideration services and/or other assets of comparable or greater value; provided, that (i) at least 7590% of which is cashthe consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (yii) such consideration is at least equal to in the fair market value event of the assets being sold, transferred, leased or disposed of and (z) the a swap with a fair market value (as determined in good faith by the board Borrower) in excess of directors $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, that the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b); provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (n) shall not exceed, in any fiscal year of the Borrower, the greater of $50.0 million and 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 3.05 or 5.04, as applicable and (B) no Default or Event of Default exists or would result therefrom;
(o) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other similar governing body obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the entity making consideration in respect of such dispositionsale or acquisition; and
(p) the Transactions. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) of this Section 6.05) unless such disposition is for fair market value (as determined in good faith by the Borrower), or if not fair market value, the shortfall is permitted as an Investment under Section 6.04 and (ii) no sale, transfer or other disposition of assets in excess of $15.0 million shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided, that for purposes of clause (ii), (a) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration received pursuant to this clause (vic) that is at that time outstanding, not to exceed the greater of $35.0 million and 3.0% of Consolidated Total Assets (as of the end of the fiscal quarter immediately prior to the date such sale, disposition or transfer of assets was entered into for which financial statements have been delivered pursuant to Section 3.05 or 5.04, as applicable at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall not exceed $20,000,000 in the aggregatebe deemed to be cash. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.056.05 to any Person other than Holdings, the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Noranda Aluminum Acquisition CORP)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge Other than as contemplated by the Transactions or with respect to the Excluded Asset Sales, merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any SubsidiarySubsidiary or any Affiliated Guarantor, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower Borrower, any Subsidiary and any Subsidiary Affiliated Guarantor may purchase and sell or swap inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Aw) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bx) any wholly owned Subsidiary or Affiliated Guarantor may merge into or consolidate with any other wholly owned Subsidiary or Affiliated Guarantor in a transaction in which the surviving entity is a wholly owned Subsidiary or Affiliated Guarantor and no person other than the Borrower or Borrower, a wholly owned Subsidiary or an Affiliated Guarantor receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (Cy) any Foreign Subsidiary Loan Party may merge into purchase, lease or consolidate with otherwise acquire all or substantially all of the assets of any other Foreign SubsidiaryLoan Party or sell, (D) any Subsidiary may be liquidatedtransfer, wound up lease or dissolved, or dispose of all or any part substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, other Loan Party and (Fz) the Borrower Borrower, the Subsidiaries and the Subsidiaries Affiliated Guarantors may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationAcquisitions.
(b) Make Other than in the case of mergers effected pursuant to Section 6.05(a)(ii)(x), make any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of (other than any Excluded Asset Sales) pursuant to this clause paragraph (vib) shall not exceed $20,000,000 50,000,000 in the aggregate. To aggregate (or $100,000,000 in the extent any Subsidiary event the pro forma Leverage Ratio (after giving effect to such Asset Sale) is less than 4.0 to 1.0); provided that the foregoing restrictions of clauses (b)(i) and (b)(ii) shall not apply to transfers of condemned property as a result of the exercise of “eminent domain” or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect other similar policies to the sale of any Subsidiary or Collateral, respective Governmental Authority that has condemned such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingproperty.
Appears in 1 contract
Samples: Credit Agreement (St Louis Riverboat Entertainment Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and business, (ii) the Borrower and Buffets Southeast, Inc. may consummate the transactions contemplated by the Merger Agreement, (iii) the Borrower and any wholly owned Subsidiary may make Permitted Acquisitions, (iv) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ax) any wholly owned Subsidiary may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation, (By) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary (or, in order to consummate a Permitted Acquisition, any other person) in a transaction in which the surviving entity is a wholly owned Subsidiary and (except in the case of Permitted Acquisitions) no person other than the Borrower or a wholly owned Subsidiary receives any consideration (consideration; provided that if any party to any such transaction is merger described in this clause (y) shall involve a Loan PartySubsidiary Guarantor, the surviving entity of such transaction merger shall be a Loan PartySubsidiary Guarantor and (z) Holdings may merge with or into the Borrower in a transaction in which no person other than Holdings or the Borrower receives any consideration other than, in the case of the stockholders of Holdings, consideration consisting solely of the Equity Interests of the surviving corporation (following which all references to Holdings or the Borrower shall mean the survivor of such merger), and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fv) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and sell the Subsidiaries may engage in any Permitted ReorganizationSale/Leaseback Properties pursuant to the Sale/Leaseback Documents.
(b) Make Engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) shall not exceed $20,000,000 in any fiscal year.
(c) Notwithstanding the aggregate. To foregoing paragraphs (a) and (b), the extent Borrower shall be permitted to (i) sell Equity Interests of Tahoe Joe’s pursuant to a Qualified Tahoe Joe’s Equity Offering, (ii) consummate a Tahoe Joe’s Sale, (iii) sell Non-Core Assets, (iv) sell the Borrower’s manufacturing facility located in Marshfield, Wisconsin, (v) sell up to 80 restaurants in the aggregate after the Closing Date and (vi) enter into like kind exchanges with respect to up to 20 restaurants after the Restatement Date (but not more than seven in any Subsidiary fiscal year of the Borrower) for similarly valued restaurants that are the subject of a Sale and Leaseback on the Restatement Date, in each case so long as (x) no Event of Default or Collateral is sold as permitted by this Default shall have occurred and be continuing or result therefrom, (y) with respect to clauses (ii), (iii), (iv) and (v) above, the requirements of Section 6.056.05(b)(i) and (ii) have been satisfied and (z) with respect to clauses (iv) and (v), the Borrower complies with Section 2.13(b) or the Required Lenders or all the Lenders(e), as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingNet Cash Proceeds thereof.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease lease, license or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) acquired or arising), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business and by the Dutch Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Dutch Borrower or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Dutch Borrower or any Subsidiary or (iv) the sale or disposition of Permitted Investments 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 or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or with the Dutch Borrower in a transaction in which the Dutch Borrower is the surviving corporationsurvivor, (Bii) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Dutch Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Loan Party into or with any party to any such transaction other Subsidiary that is not a Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary, if the Dutch Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Dutch Borrower and is not materially disadvantageous to the Lenders and the assets of such Subsidiary, if a Subsidiary Loan Party, are distributed to the Dutch Borrower or a Subsidiary Loan Party or (v) any Subsidiary may merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.11;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) Investments permitted by Section 6.04, Permitted Liens, and Restricted Payments permitted by Section 6.06;
(e) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing;
(f) sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section 6.05; provided that the Net Proceeds thereof are applied in accordance with Section 2.12(b);
(g) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that following any such merger, consolidation or amalgamation involving the Dutch Borrower, the Dutch Borrower shall be the surviving entity;
(Ch) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiaryleases, (D) any Subsidiary may be liquidated, wound up or dissolvedlicenses, or all subleases or sublicenses of any part real or personal property in the ordinary course of its business; provided that in the case of Intellectual Property, property such licenses or assets may be conveyedsublicenses are non-exclusive;
(i) sales, sold, leased, transferred leases or otherwise disposed of, in one transaction other dispositions of inventory or a series dispositions or abandonment of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part Intellectual Property of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Dutch Borrower and the Subsidiaries may make Permitted Acquisitions and in its reasonable business judgment has determined by the management of Dutch Borrower to be no longer useful or necessary in the operation of the business of Dutch Borrower or any of the Subsidiaries;
(Gj) Holdings any exchange of assets for services and/or other assets of comparable or greater value or usefulness to the business of the Dutch Borrower and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
as a whole; provided that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value no Default or Event of all assets soldDefault exists or would result therefrom, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) salesimmediately after giving effect thereto, transfers or other dispositions set forth Dutch Borrower shall be in Schedule 6.05;
Pro Forma Compliance and (iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to the Net Proceeds, if any, thereof are applied in accordance with Section 6.06(a2.12(b);
(vk) any disposition in a transaction the ordinary course of business, including dispositions of Investments in joint ventures to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements. Notwithstanding anything to the contrary contained above in this Section 6.05, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties or pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash6.05(a)(ii), (yb), (d), (e), (h), (i) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (zl)) the unless such disposition is for fair market value (as determined in good faith by the board of directors Dutch Borrower and (ii) no sale, transfer or other similar governing body disposition of assets in excess of $10,000,000 shall be permitted by paragraph (a)(i), (c) or (f) of this Section 6.05 (except to a Loan Party) unless such disposition is for at least 75% cash consideration; provided that for purposes of clause (ii), (a) the amount of any liabilities (as shown on Dutch Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets and (b) any notes or other obligations or other securities or assets received by Dutch Borrower or such Subsidiary from such transferee that are converted by Dutch Borrower or such Subsidi ary into cash within 180 days of the entity making such dispositionreceipt thereof (to the extent of the cash received) of all assets soldshall, transferredin each case, leased or disposed of pursuant be deemed to this clause (vi) shall not exceed $20,000,000 in the aggregatebe cash. To the extent any Subsidiary or Collateral is sold as or disposed of in a transaction expressly permitted by this Section 6.05, 6.05 to any person other than the Dutch Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralLoan Party, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold or disposed of free and clear of the Liens created by the Security DocumentsLoan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by such Loan Party will not be so released), and the Agents Administrative Agent or Collateral Agent shall take all take, and is hereby authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Dutch Borrower in order to effect evidence the foregoingforegoing subject to the receipt of a certification by Dutch Borrower stating that such transaction is in compliance with the Credit Agreement and the other Loan Documents and as to such other matters as the Administrative Agent or Collateral Agent may reasonably request.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (of, in one transaction or in a series of transactions) transactions (other than pursuant to the Permitted Restructuring), all or substantially all the assets (any substantial part of its assets, whether now owned or hereafter acquired) acquired (other than assets of the GrafTech constituting an Unrestricted Subsidiary), or any Capital Stock of a Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) this Section shall not prohibit: the Borrower and any Subsidiary may purchase and sell sale of inventory or license of intellectual property in the ordinary course of business and (ii) by any Subsidiary, the sale of used or surplus equipment by any Subsidiary in the ordinary course of business, the acquisition of any asset of any person in the ordinary course of business or any purchase or sale of Permitted Investments in the ordinary course of business; if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationcontinuing, (Bi) the merger of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Wholly Owned Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Subsidiary (which shall be a Domestic Subsidiary if the non-surviving person shall be a Domestic Subsidiary, a Guarantor if the non-surviving person shall be a Guarantor (and a Loan Party that is not an Excluded Foreign Loan Party if the non-surviving person shall be a Loan Party that is not an Excluded Foreign Loan Party)), and no person other than GrafTech or a Wholly Owned Subsidiary receives any consideration, or (ii) the Borrower merger into or with a non-Wholly Owned Subsidiary of any person that is a wholly owned subsidiary of such non-Wholly Owned Subsidiary receives any consideration (provided that if any party to any such in a transaction is a Loan Party, in which the surviving entity is a Subsidiary in which GrafTech’s aggregate equity ownership percentage is no less than it was in such non-Wholly Owned Subsidiary immediately prior the effectiveness of such transaction merger (which shall be a Domestic Subsidiary if the non-surviving person shall be a Domestic Subsidiary, a Guarantor if the non-surviving person shall be a Guarantor (and a Loan Party that is not an Excluded Foreign Loan Party if the non-surviving person shall be a Loan Party that is not an Excluded Foreign Loan Party)), and no person other than GrafTech, a Wholly Owned Subsidiary or such non-Wholly Owned Subsidiary receives any consideration; Sale and Lease-Back Transactions permitted by Section 6.03; Investments permitted by Section 6.04; subject to Section 6.07, sales, leases or transfers (i) from any Subsidiary to a domestic Wholly Owned Subsidiary that is a Guarantor, (ii) from any Foreign Subsidiary that is not a CFC (other than any Loan Party that is not an Excluded Foreign Loan Party) to any Foreign Wholly Owned Subsidiary that is not a CFC; (iii) from any Foreign Subsidiary that is a CFC to any Foreign Wholly Owned Subsidiary; (iv) constituting Permitted Subsidiary Transfers; or (v) constituting Permitted Subsidiary Investments made in reliance on Section 6.04(d), (Cj), (k), (l) or (m); the sale or contribution of (i) the goodwill of GrafTech, Finance or any Foreign other Domestic Subsidiary may merge into to Swissco, (ii) the customer list of GrafTech, Finance or consolidate any other Domestic Subsidiary to Swissco, provided that any such sale of the customer list shall not impose any limitation on the seller in dealing with any other Foreign Subsidiarycustomer on such list, (Diii) intellectual property owned on the Effective Date by Seadrift to Swissco, provided that (A) such intellectual property will be pledged by Swissco to secure the Swissco Obligations and (B) the seller thereof shall retain a license of not less than 10 years’ duration of all rights in respect of such intellectual property, which license shall not require the payment by the licensee of royalties in excess of those that would prevail in an arm’s length transaction between unrelated parties, shall be freely transferable to any person or persons in connection with any sale to a person other than GrafTech or a Subsidiary of a business in which such intellectual property is used and (iv) Production Capacity Rights by Seadrift or GrafTech USA to Swissco; provided, that each such sale of intellectual property of Seadrift shall be permitted solely to the extent the consideration therefor consists of an intercompany note of Swissco (which may be prepaid at the election of Swissco). sales, leases or other dispositions of inventory or intellectual property of the Subsidiaries determined by the Board of Directors or senior management of GrafTech to be no longer useful or necessary in the operation of the business of GrafTech and the Subsidiaries; sales or other dispositions of accounts receivable of Subsidiaries in connection with factoring arrangements so long as the aggregate face amount at any time outstanding of receivables subject to such arrangements does not exceed (i) $50,000,000 in the aggregate or (ii) $15,000,000 for receivables of Domestic Subsidiaries and Swissco; sales or other dispositions by any Subsidiary may be liquidated(i) of assets (other than receivables, wound up except to the extent disposed of incidentally in connection with a sale or dissolvedother disposition otherwise permitted hereby), including Capital Stock of Subsidiaries, after the Effective Date for consideration in an aggregate amount during the term of this Agreement not exceeding $250,000,000 and (ii) of any portion of the assets acquired in connection with a Permitted Acquisition or all other acquisition permitted hereunder to the extent that (A) such sale or other disposition is required by any part Governmental Authority in accordance with applicable antitrust or other similar law or (B) the aggregate value of its business, property or the assets may be conveyed, sold, leased, transferred so sold or otherwise disposed ofof does not exceed 25% of the aggregate value of the assets so acquired; provided, however, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, excepteach such case that:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers each such sale or other dispositions set forth disposition shall be for a consideration determined in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant good faith by the Board of Directors or senior management of GrafTech to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is be at least equal to the fair market value (if any) thereof;
(ii) the aggregate amount of all non-cash consideration included in the assets being sold, transferred, leased proceeds of any such sale or disposed other disposition may not exceed 25% of and (z) the fair market value of such proceeds; provided, however, that obligations of the type referred to in paragraphs (determined a) or (e) of the definition of “Permitted Investments” shall be deemed not to be non-cash proceeds if such obligations are promptly sold for cash and the proceeds of such sale are included in good faith by the board calculation of directors Net Proceeds from such sale;
(iii) no Default or Event of Default shall have occurred and be continuing immediately prior to or after such sale or other similar governing body disposition;
(iv) in the case of any sale or disposition under clause (A) or (B)(y) above, no such sale or other disposition shall be made unless GrafTech shall be in compliance, on a pro forma basis after giving effect to such sale or other disposition, with the covenants contained in Sections 6.10 and 6.11 recomputed as at the last day of the entity making most recently ended fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) as if such sale or other disposition had taken place on the first day of each relevant period for testing such compliance, and, in the case of any such sale or other disposition for consideration in excess of $50,000,000, GrafTech shall have delivered to the Administrative Agent a certificate of GrafTech signed by a Responsible Officer of GrafTech to such effect; and
(v) in the case of any sale or disposition under clause (A) above, after giving effect to such sale or other disposition) , the aggregate amount of all the assets sold, transferred, leased constituting Collateral that shall have been sold or otherwise disposed of pursuant to in reliance on this clause paragraph (vii) after the Effective Date shall not exceed $20,000,000 50,000,000. Notwithstanding any other provision herein, no sale may be made of the Capital Stock of (x) Holdings, Finance, Luxembourg Parent, Luxembourg Holdco, Swissco or GrafTech International Holdings or (y) any other Subsidiary, except in connection with the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or sale of all the Lendersoutstanding Capital Stock of such Subsidiary that is held by GrafTech or any other Subsidiary; provided, as applicablehowever, waive that a sale or disposition of less than all the provisions Capital Stock of this Section 6.05 with respect a Subsidiary may be made if (1) such Subsidiary is not a Loan Party (or, if no Default or Event of Default exists or will exist immediately after giving effect to such sale or disposition, such Subsidiary is an Excluded Foreign Loan Party), (2) if the Capital Stock of such Subsidiary was pledged pursuant to a Pledge Agreement, the Capital Stock of such Subsidiary not sold or otherwise disposed of shall remain subject to the Lien of a Pledge Agreement, and (3) such sale or other disposition of Capital Stock shall be treated as an acquisition of the remaining Capital Stock for purposes of Section 6.04 and shall be permitted under Section 6.04(j), (k), (l) or (m); the spin off of the Capital Stock of any Subsidiary or Collateralany other non-cash distribution to equity holders of GrafTech; provided, however, that (i) the net fair value of such Subsidiary Capital Stock or Collateral other non-cash distribution shall be deemed to be a Restricted Payment for purposes of Section 6.06(c) and such spin off or other non-cash distribution shall be permitted only if such Restricted Payment is permitted thereunder and (unless sold ii) at the end of the then most recent fiscal quarter for which financial statements shall have been received under Section 5.04(a) or (b) GrafTech would have been in compliance with each of the covenants set forth in Sections 6.10 and 6.11 if such covenants were recomputed on a pro forma basis after giving effect to such spin off as if such spin off had been consummated on the first day of the relevant period for such computation; and sales, transfers and other dispositions by one or more Subsidiaries to one or more other Subsidiaries or GrafTech required to give effect to a Loan Partytransaction consummated in reliance on Section 6.05(j) (which together shall be sold free sales, transfers and clear other dispositions counted as one transaction for purposes of determining compliance with the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect numerical limitations under Section 6.06). Notwithstanding the foregoing, no transaction may be effected in reliance on any of paragraphs (a) through (k) above if such transaction would constitute or result in an Excess Foreign Transfer.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger or consolidation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 6.07 and the aggregate gross proceeds of any Foreign Subsidiary may merge into such sales, transfers, leases or consolidate with other dispositions plus the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofleases in reliance on clause (g) below, shall not exceed, in one transaction any fiscal year of the Borrower, the greater of (x) $110.0 million and (y) 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease or a series other disposition for which financial statements have been delivered pursuant to Section 5.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Dividends permitted by Section 6.06;
(f) the sale of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph by this Section 6.05 (aor required to be included in this clause (g) abovepursuant to Section 6.05(c)); provided, except:
that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Borrower, the greater of (x) $110.0 million and (y) 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (ii) no Default or Event of Default exists or would result therefrom (iii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $10.0, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (iv) the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b); and
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value in excess of $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value in excess of $20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, that the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b); provided, further, that (A) the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Borrower, the greater of $110.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, and (C) with respect to any such exchange with aggregate gross consideration in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) of this Section 6.05) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets in excess of $15.0 million shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided, the provisions of clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $10.0 million or to other transactions involving assets with a fair market value of not more than the greater of $45.0 million and 10% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer or disposition for which financial statements have been delivered pursuant to Section 5.04, in the aggregate for all such transactions during the term of this Agreement; provided further, that for purposes of clause (iii), (a) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ic) shall that is at that time outstanding, not to exceed $10,000,000;
35.0 million at the time of the receipt of such Designated Non-Cash Consideration (ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to with the fair market value of each item of Designated Non-Cash Consideration being measured at the assets being sold, transferred, leased or disposed of time received and (z) the fair market value (determined without giving effect to subsequent changes in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vivalue) shall not exceed $20,000,000 in the aggregatebe deemed to be cash. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.056.05 to any Person other than Holdings, the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other personPerson, or permit any other person Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell inventory sale of inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of intellectual property, in each case in the ordinary course of business and by the Borrower or any of its Relevant Subsidiaries, (ii) the sale of any other asset in the ordinary course of business by the Borrower or any of its Relevant Subsidiaries, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any of its Relevant Subsidiaries, including motor vehicles or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger or consolidation of any wholly owned Relevant Subsidiary may merge of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bii) the merger or consolidation of any wholly owned Relevant Subsidiary may merge of the Borrower into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, amalgamation or consolidation of any Subsidiary of the Borrower that if is not a Loan Party into or with any party to any such transaction other Subsidiary of the Borrower that is not a Loan Party, (iv) the surviving liquidation, winding up, or dissolution or change in form of entity of any Relevant Subsidiary of the Borrower if the Borrower determines in good faith that such transaction shall be a liquidation, winding up, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) the change in form of entity of the Borrower if the Borrower determines in good faith that such change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (vi) the Borrower may merge or consolidate with Crestwood Equity Partners to the extent that Crestwood Equity Partners (A) survives such merger or consolidation, (B) expressly assumes the obligations of the Borrower under the Loan Party), Documents pursuant to documentation reasonably satisfactory to the Administrative Agent and (C) satisfies the Holding Company Condition immediately prior to such merger or consolidation;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); provided that any Foreign sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary may merge into of the Borrower that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or consolidate with other dispositions by a Loan Party to a Subsidiary that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofleased in reliance upon paragraph (g) below shall not exceed, in one transaction any fiscal year of the Borrower, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and dividends, distributions, redemptions, purchases, retirements or a series other acquisitions for value permitted by Section 6.06;
(f) the sale of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any defaulted receivables in the ordinary course of business and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant in reliance upon this paragraph (g) and in reliance upon the second proviso to this clause paragraph (c) above shall not exceed, in any fiscal year of the Borrower, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided further that the Net Proceeds thereof are applied in accordance with Section 2.11(c), as applicable; and provided further that after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(h) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Relevant Subsidiary, the surviving or resulting entity shall not exceed $10,000,000be a Loan Party;
(iii) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Relevant Subsidiary in the ordinary course of business;
(j) abandonment, cancellation or disposition of any intellectual property of the Borrower in the ordinary course of business;
(k) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(l) sales, transfers transfers, leases or other dispositions of assets or 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 Schedule 6.05joint venture arrangements and similar binding arrangements;
(iiim) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04the Transactions; and
(vin) any the Empire JV Transactions. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other Asset Sale disposition of assets shall be permitted by this Section 6.05 (xother than sales, transfers, leases or other dispositions (1) to Loan Parties pursuant to paragraph (c) hereof, (2) or pursuant to paragraphs (e), (l) or (n) hereof) unless such disposition is for consideration fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (d) or (j) of this Section 6.05 unless such disposition is for at least 75% of which is cash, (y) such cash consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors no sale, transfer or other similar governing body disposition of the entity making such disposition) assets in excess of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) $20.0 million shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions paragraph (g) of this Section 6.05 with respect to unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (ii) and (iii), the sale amount of any secured Indebtedness or other Indebtedness of a Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to of the Borrower that is not a Loan PartyParty (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing or would result therefrom,
(Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge or any other person with or into the Borrower (x) in a transaction in which the Borrower is the survivor or (y) in a transaction in which the Borrower is not the survivor (such surviving corporationperson, the “Successor Borrower”); provided that (A) after giving effect to such transaction, the Fixed Charge Coverage Ratio, on a Pro Forma Basis, (1) shall be no less than 2.00 to 1.00 or (2) shall be at least equal to the Fixed Charge Coverage Ratio immediately prior to such transaction, (B) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any wholly owned state thereof, the District of Columbia or any territory thereof, (C) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (D) each guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall confirm that its guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (E) each guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Collateral Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and/or its Guarantee thereof, as applicable, (F) each mortgagor of the Mortgaged Property, unless it is the other party to such merger, consolidation or amalgamation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and/or its Guarantee thereof, as applicable, and (G) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, consolidation or amalgamation and such supplement to this Agreement or any Security Document comply with this Agreement; provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement,
(ii) the merger, consolidation or amalgamation of any Subsidiary may merge with or into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party, and no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration,
(provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction Subsidiary that is not a Subsidiary Loan Party, ,
(iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, or
(v) any Subsidiary may merge, consolidate or amalgamate with or into any other person in order to effect an Investment permitted pursuant to Section 7.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 6.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (c) shall be made in compliance with Section 7.07 and the aggregate gross proceeds of any such sales, transfers, leases or other dispositions shall not exceed, in any fiscal year of the Borrower, the greater of (x) $50,000,000 and (y) 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease or other disposition for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable;
(d) Sale and Lease Back Transactions permitted by Section 7.03;
(e) Investments permitted by Section 7.04, Permitted Liens and Restricted Payments permitted by Section 7.06;
(f) the sale or other disposition of defaulted receivables and the compromise, settlement and collection of receivables in the ordinary course of business or in bankruptcy or other proceedings concerning the other account party thereon and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section 7.05; provided, that (i) no Default or Event of Default exists or would result therefrom, and (ii) the Net Proceeds thereof are applied in accordance with Section 2.08(c) and (iii) no sale, transfer or other disposition of assets in excess of $15,000,000 shall be permitted by this paragraph (g) unless such disposition is for at least 75% cash consideration; provided, that for purposes of clause (iii), (A) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet delivered pursuant to Section 6.04(a) or (b) or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Term Credit Obligations) that are assumed by the transferee of any such assets, (B) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Designated Non-Cash Consideration received by the Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, Subsidiaries in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any such Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the having an aggregate fair market value of value, taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration received pursuant to this clause (iC) shall that is at that time outstanding, not to exceed the greater of $10,000,000;
(ii) sales30,000,000 and 3.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such sale, transfers disposition or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted transfer of assets was entered into for which financial statements have been delivered pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 4.05 or 6.04; and
(vi) any other Asset Sale (x) for consideration , as applicable at least 75% of which is cash, (y) such consideration is at least equal to the fair market value time of the assets being sold, transferred, leased or disposed receipt of and such Designated Non-Cash Consideration (z) with the fair market value (as determined in good faith by the board Borrower) of directors each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash;
(h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation (i) involving the Borrower, the Borrower is the surviving corporation or such merger, consolidation or amalgamation shall otherwise satisfy the requirements of subsection (b)(i) above and (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(i) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(j) sales, leases or other similar governing body dispositions of inventory of the entity making such dispositionBorrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (i) of the definition of “Net Proceeds”;
(l) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 2.08(c) (without duplication of any amounts applied in accordance with Section 2.08(c) pursuant to Section 7.01(v));
(m) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract tort or other claims of any kind to the extent that any of the foregoing could not reasonably be expected to have a Material Adverse Effect;
(n) any exchange of assets for services and/or other assets of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder and (ii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value; provided, that the Net Proceeds, if any, thereof are applied in accordance with Section 2.08(c); provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets sold, transferred, leased or disposed of pursuant to exchanged in reliance upon this clause paragraph (vin) shall not exceed exceed, in any fiscal year of the Borrower, the greater of $20,000,000 50,000,000 and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable and (B) no Default or Event of Default exists or would result therefrom;
(o) the Borrower or any Subsidiary may enter into any agreement or arrangement involving, relating to or otherwise facilitating (i) requirements contracts, (ii) tolling arrangements or (iii) the reservation or presale of production capacity of the Borrower or a Subsidiary by one or more third parties; and
(p) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the aggregateconsideration in respect of such sale or acquisition. Notwithstanding anything to the contrary contained in Section 7.05 above, no sale, transfer or other disposition of assets shall be permitted by this Section 7.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) of this Section 7.05) unless such disposition is for fair market value (as determined in good faith by the Borrower), or if not fair market value, the shortfall is permitted as an Investment under Section 7.04. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.057.05 to any person other than Holdings, the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of Parent or any Subsidiary, Subsidiary or preferred equity interests of Parent or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell purchase, lease, sublease or sale of inventory in the ordinary course of business and by Parent or any Subsidiary, (ii) the acquisition, lease or sublease of any other asset in the ordinary course of business by Parent or any Subsidiary, (iii) the sale or other disposition of surplus, obsolete or worn out equipment or other property in the ordinary course of business by Parent or any Subsidiary or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party (subject to clause (i) above) and, in the case of each of clauses (i) and (ii) above, no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger or consolidation of any Subsidiary that if any party to any such transaction is not a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge Party into or consolidate with any other Foreign Subsidiary, Subsidiary that is not a Loan Party or (Div) any Subsidiary may be liquidated, wound up the liquidation or dissolved, dissolution (other than the Borrower) if Parent determines in good faith that such liquidation or all dissolution is in the best interests of Parent and is not materially disadvantageous to the Lenders or change in form of entity of Parent or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofSubsidiary; provided that, in one transaction the case of any such change in form of entity, Parent shall give 30 days prior written notice to the Administrative Agent and the Collateral Agent of such change; (c) sales, transfers, leases or other dispositions to Parent or a series of transactions, to Borrower Subsidiary (upon voluntary liquidation or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided, further that, in the event the aggregate fair market value gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferredtransferred or leased in reliance upon paragraph (h) below exceed, leased or disposed in any fiscal year of pursuant to this clause (i) Parent, 10.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year, such Net Proceeds in excess of such amount shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth be applied in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to accordance with Section 6.06(a2.11(c);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate or amalgamate with it, or otherwise sell, transfer, lease or otherwise dispose (including to a Divided LLC pursuant to a Division) of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by any Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by any Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by any Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing or would result therefrom,
(Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge with or into the any Borrower in a transaction in which the Borrower is the surviving corporation, (B) or any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is such Borrower or, if a wholly owned Borrower is not a party to such transaction, a Subsidiary Loan Party, and no person other than the a Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;,
(provided ii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction Subsidiary that is not a Subsidiary Loan Party, ,
(iii) the surviving liquidation or dissolution or change in form of entity of any Subsidiary if the applicable Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of such Borrower and is not materially disadvantageous to the Lenders, or
(iv) any Subsidiary may merge, consolidate or amalgamate with or into any other person in order to effect an Investment permitted pursuant to Section 7.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party)Party if the merging, (C) any Foreign consolidating or amalgamating Subsidiary may merge into or consolidate was a Loan Party and which together with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part each of its businessSubsidiaries shall have complied with the requirements of Section 6.10;
(c) sales, property transfers, leases or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction other dispositions to a Borrower or a series of transactions, to Borrower Subsidiary (upon voluntary liquidation or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (c) shall be made in compliance with Section 7.07 and the aggregate gross proceeds of any such sales, transfers, leases or other dispositions plus the aggregate fair market value of any or all assets sold, transferred, leased leased, licensed or otherwise disposed of pursuant in reliance on clause (g) below, shall not exceed, in any fiscal year of the Borrowers, $5,000,000;
(d) Sale and Lease Back Transactions permitted by Section 7.03;
(e) Investments permitted by Section 7.04 and Permitted Liens and Restricted Payments permitted by Section 7.06;
(f) the sale or other disposition of defaulted receivables and the compromise, settlement and collection of receivables in the ordinary course of business or in bankruptcy or other proceedings concerning the other account party thereon and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section 7.05 (or required to be included in this clause (ig) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a7.05(c);
); provided that (vi) in a transaction permitted pursuant to Section 6.04; and
the aggregate gross proceeds (viincluding non-cash proceeds) of any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the or all assets being sold, transferred, leased leased, licensed or otherwise disposed of in reliance upon this clause (g) shall not exceed, in any fiscal year of the Borrowers, $10,000,000 and (zii) no Default or Event of Default exists or would result therefrom;
(h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that following any such merger, consolidation or amalgamation (i) involving a Borrower, such Borrower is the surviving corporation or such merger, consolidation or amalgamation shall otherwise satisfy the requirements of subsection (b)(i) above and (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(i) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of any Borrower and its Subsidiaries determined by the management of such Borrower to be no longer useful or necessary in the operation of the business of such Borrower or any of its Subsidiaries;
(k) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract tort or other claims of any kind to the extent that any of the foregoing could not reasonably be expected to have a Material Adverse Effect;
(l) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the board applicable Borrower) in excess of directors $2,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of such Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the applicable Borrower) in excess of $5,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of the applicable Holdco or such Borrower; provided that
(A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (n) shall not exceed, in any fiscal year of the Borrowers, $10,000,000 and (B) no Default or Event of Default exists or would result therefrom;
(m) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other similar governing body obligation with or to a person (other than each Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition) in a Permitted Business Acquisition, made as part of such acquisition and in each case comprising all or a portion of the entity making consideration in respect of such sale or acquisition;
(n) any merger, consolidation, conveyance, transfer, lease or other disposition of the Equity Interests of, or undertaken by, Wise Alloys Finance Corporation or Listerhill Total Maintenance Center, LLC, so long as the assets attributable to such entities do not have a book value or fair market value in an aggregate amount in excess of $4,000,000 measured at the time of each such disposition; and
(o) with respect to any Receivables Subsidiary, the sale of all or substantially all of the applicable receivables of such Receivables Subsidiary in one or more transactions pursuant to any Qualified Receivables Financing. Notwithstanding anything to the contrary contained in Section 7.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 7.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) of this Section 7.05 or any Sale and Lease Back Transaction permitted by Section 7.03(b)) unless such disposition is for fair market value (as determined in good faith by the applicable Borrower), or if not fair market value, the shortfall is permitted as an Investment under Section 7.04, (ii) no sale, transfer or other disposition of assets in excess of $1,000,000 shall be permitted by paragraph (g) of this Section 7.05 unless such disposition is for at least 75% cash consideration; provided that, for purposes of this clause (ii), (a) the amount of any liabilities (as shown on any Borrower’s or any Subsidiary’s most recent balance sheet delivered pursuant to Section 6.04(c)) of any Borrower or any Subsidiary of any Borrower (other than liabilities that are by their terms subordinated to the ABL Credit Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by such Borrower or such Subsidiary of such Borrower from such transferee that are converted by such Borrower or such Subsidiary of such Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by such Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration received pursuant to this clause (vic) that is at that time outstanding, not to exceed $5,000,000 at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value (as determined in good faith by the applicable Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall not exceed $20,000,000 be deemed to be cash and (iii) in respect of any sale, transfer or other disposition of Accounts and/or Inventory made in any case outside of the aggregateordinary course of business of any Borrower or any other applicable Loan Party, such Borrower shall notify the Administrative Agent thereof in writing and the amount set forth in clause (x) of the definition of “Borrowing Base” shall be reduced by the Net Proceeds thereof until receipt by the Administrative Agent of the next Borrowing Base Certificate delivered pursuant to Section 6.13 hereof. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.057.05 to any Person other than the Holdcos, the Borrowers or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Constellium Se)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, or liquidate or dissolve, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 or would result therefrom, (Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or with the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (v) any Subsidiary may merge, consolidate or amalgamate into or with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.09;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 6.07 and the aggregate gross proceeds of any Foreign Subsidiary may merge into such sales, transfers, leases or consolidate with other dispositions plus the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed ofof in reliance on clause (g) below, shall not exceed, in one transaction any fiscal year of the Borrower, the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such sale, transfer, lease or other disposition for which financial statements have been delivered pursuant to Section 5.04 (determined based on the balance sheet so delivered for such prior fiscal year);
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06;
(f) the sale or other disposition of defaulted receivables and the compromise, settlement and collection of receivables in the ordinary course of business or in bankruptcy or other proceedings concerning the other account party thereon and not as part of a series Permitted Securitization Financing;
(g) sales, transfers, leases, licenses or other dispositions of transactionsassets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, to Borrower or that (i) the aggregate gross proceeds (including noncash proceeds) of any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed of, of in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under reliance upon this paragraph (a) aboveg), except:
(i) in a transaction referred to in Section 6.03; provided that plus the aggregate fair market value gross proceeds of any or all assets sold, transferred, leased or otherwise disposed of to Subsidiaries that are not Loan Parties in reliance on clause (c) above, shall not exceed, in any fiscal year of the Borrower, the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such sale, transfer, lease, license or other disposition for which financial statements have been delivered pursuant to this clause Section 5.04 (i) shall not exceed $10,000,000;
determined based on the balance sheet so delivered for such prior fiscal year), (ii) salesno Default or Event of Default exists or would result therefrom, transfers or other dispositions set forth in Schedule 6.05;
(iii) with respect to any Permitted Reorganization;
such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (iv) Restricted Payments permitted pursuant to the Net Proceeds thereof are applied in accordance with Section 6.06(a2.11(b);
(vh) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Subsidiary that is not a Loan Party, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) the sale or other transfer of Securitization Assets or interests therein pursuant to a Permitted Securitization Financing;
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided, that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the swap with a fair market value (as determined in good faith by the board Borrower) in excess of directors $10.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $20.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance on this paragraph (m) shall not exceed, in any fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the fiscal year ended immediately prior to the date of such exchange transaction for which financial statements have been delivered pursuant to Section 5.04 (determined based on the balance sheet so delivered for such prior fiscal year), (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other similar governing body obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the entity making consideration in respect of such dispositionsale or acquisition;
(o) [reserved];
(p) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of any kind;
(q) any disposition of Permitted Investments in connection with the Arbitrage Programs;
(r) sales or other dispositions of Equity Interests in Existing Joint Ventures;
(s) any grant of a license or sublicense in the ordinary course of business under any Intellectual Property Rights or franchise rights; and
(t) the purchase and sale of assets in the ordinary course of the relocation services business of the Borrower or any Subsidiary. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by clause (g) or (m) of this Section 6.05 unless such disposition is for fair market value (as determined in good faith by the Borrower) and (ii) no sale, transfer or other disposition of assets in excess of $40.0 million shall be permitted by paragraph (d) or (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that for purposes of clause (ii), (a) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration received pursuant to this clause (vic) that is at that time outstanding, not to exceed $50.0 million at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall not exceed $20,000,000 in the aggregatebe deemed to be cash. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.056.05 to any person other than Holdings, the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that (i) the Borrower and any Subsidiary (other than an Inactive Subsidiary or Finsub) may purchase and sell inventory in the ordinary course of business business, (ii)(A) the Borrower and any Subsidiary (other than an Inactive Subsidiary) may sell Program Receivables to Finsub and (iiB) Finsub may sell Program Receivables pursuant to the Receivables Program Documentation and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary (other than Finsub) may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary (other than Finsub) may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (consideration; provided that that, if any either of the wholly owned Subsidiaries party to any such transaction merger or consolidation is a Loan PartyGuarantor, then the surviving entity of such transaction shall be or become a Loan Party)Guarantor, (C) in connection with any Foreign Permitted Acquisition pursuant to Section 6.04(d), the Borrower or any wholly owned Subsidiary may acquire or merge into or consolidate with any other Foreign entity acquired pursuant to such Permitted Acquisition in a transaction in which the surviving entity is the Borrower or a wholly owned Subsidiary; provided that, (x) if the Borrower is a party to such merger or consolidation, the Borrower shall be the surviving corporation, and (y) if any wholly owned Subsidiary that is a Guarantor merges into or consolidates with any entity acquired pursuant to such Permitted Acquisition, then the surviving entity shall be or become a Guarantor, (D) any Subsidiary following the initial Powerscreen Borrowing, the Borrower may be liquidated, wound up or dissolvedcontribute, or otherwise transfer, all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, the equity in one transaction or a series of transactions, Terex Equipment Limited (other than directors' qualifying shares) to Borrower or any wholly-owned SubsidiaryBidco, (E) the Borrower or any Foreign Subsidiary may be liquidated, wound up or dissolvedtransfer not less than 100% of the capital stock of, or all assets of, a Domestic Subsidiary to the Borrower or to any part of its businesswholly owned Domestic Subsidiary where no person other than the Borrower or a wholly owned Subsidiary receives any consideration; provided that, property if (x) such capital stock or such assets being transferred is capital stock of, or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction a Guarantor, then the recipient thereof shall be or become a series Guarantor, and (y) if the transferor of transactionssuch capital stock or such assets is a Guarantor, to any Foreign Subsidiarythen the recipient thereof shall be or become a Guarantor, (F) the Borrower and or any Subsidiary may transfer not less than 100% of the Subsidiaries may make Permitted Acquisitions and capital stock of, or assets of, a Foreign Subsidiary Issuer to any Special Purpose Foreign Holding Subsidiary where no person other than the Borrower or a wholly owned Subsidiary receives any consideration, (G) Holdings any Second-Tier Foreign Subsidiary may transfer not less than 100% of the capital stock of, or assets of, a Second-Tier Foreign Subsidiary to the Borrower or any wholly owned Subsidiary where no person other than the Borrower or a wholly owned Subsidiary receives any consideration and (H) the Subsidiaries Borrower or any Subsidiary may engage in transfer not less than 100% of the capital stock of, or assets of, any Permitted ReorganizationSecond-Tier Foreign Subsidiary to any Special Purpose Foreign Holding Subsidiary or any Foreign Subsidiary Issuer where no person other than the Borrower or a wholly owned Subsidiary receives any consideration.
(bc) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value 6.08 of the assets being sold, transferred, leased or disposed of Credit Agreement is hereby amended and (z) the fair market value (determined restated in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant its entirety to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold read as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.follows:
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, except that if, at the time thereof and immediately after giving effect thereto, no Event of Default or sellDefault shall have occurred and be continuing, (i) any wholly owned Subsidiary other than an Insurance Subsidiary may merge into the Borrower so long as the Borrower is the surviving corporation, (ii) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary other than Holdings so long as the surviving entity is a wholly owned Subsidiary and no Person other than the Borrower or a wholly owned Subsidiary receives any consideration and (iii) subject to Section 6.08, any Subsidiary other than Holdings may merge with any other Person that is principally engaged in the Insurance Business or the Financial Services Business, provided that such Subsidiary is the surviving entity.
(b) Sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any of its assets (whether now owned or hereafter acquired), unless immediately after giving effect to such sale, transfer or lease (i) no Event of Default or Default shall have occurred and be continuing and (ii) the aggregate Net Proceeds of all such sales, transfers, leases and dispositions since the Closing Date (other than such sales, transfers, leases and dispositions permitted pursuant to the immediately following sentence) does not exceed 15% of the Total Assets as of the date of such asset sale. Notwithstanding the foregoing, the Borrower and any Subsidiary may (i) sell, transfer, lease or otherwise dispose of assets (including Invested Assets) in the ordinary course of business, (ii) sell, transfer, lease or otherwise dispose of assets to the Borrower or a Subsidiary, PROVIDED that if such seller, transferor or lessor is an Insurance Subsidiary, such assets shall be sold or leased at fair market value, (iii) sell, transfer, lease or otherwise dispose of assets that are replaced within six months of the date of sale with assets that are either (A) comparable to and used in the same business as the assets sold or (B) comparable to the assets sold and used in another business in which the Borrower and the Subsidiaries are permitted to engage pursuant to Section 6.08, (iv) sell or dispose of in the ordinary course of business property that is obsolete or no longer useful in any of its business and that is (A) of DE MINIMIS value or (B) in the case of any property the value of which exceeds $500,000, determined in good faith by the Board of Directors of the Borrower or less than such Subsidiary, as the case may be, to be obsolete or no longer useful and (v) sell, transfer, lease or otherwise dispose of substantially all of the Equity Interests assets of ARM Capital Advisors, Inc. in connection with the sale by Borrower of an 80% membership interest in ARM Capital Advisors, LLC ("New ARMCA") to ARM Capital Advisors Holdings, LLC ("ARMCA Holdings") and shall transfer, convey or otherwise dispose of an 80% membership interest in New ARMCA to ARMCA Holdings. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Subsidiaryasset, or purchaseany asset or membership interest is sold as permitted by this Section 6.05, such asset or membership interest shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent shall take such actions as the Administrative Agent reasonably deems appropriate at the expense of the Borrower in connection therewith.
(c) Purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the capital stock or assets of any other personPerson, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if if, at the time thereof and immediately after giving effect thereto thereto, no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationcontinuing, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidatedmay, wound up or dissolvedsubject to the provisions of Sections 6.08, or acquire all or any a substantial part of its business, property the capital stock or assets may be conveyedof any Person that is principally engaged in the Insurance Business or the Financial Services Business, soldprovided that, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to the case of an acquisition of assets, such assets are of the type used in Section 6.03; provided that the aggregate fair market value Insurance Business or the Financial Services Business of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
such Person and (ii) salesin the case of an acquisition of capital stock by the Borrower, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to such capital stock is, if required by Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash5.10, (y) such consideration is at least equal pledged to the fair market value Administrative Agent, for the benefit of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect pursuant to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingPledge Agreement.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any SubsidiarySubsidiary (other than pursuant to any Permitted Interest Transfer, any Permitted Joint Venture or transfers of Equity Interests of any Subsidiary to a Loan Party or by a Subsidiary that is not a Subsidiary Guarantor to any Subsidiary or transfers of Equity Interests of a Subsidiary that remains a Subsidiary Guarantor after giving effect to such transfer), or purchase, lease purchase or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (w) the Borrower may merge with any other person; provided that (1) the Borrower shall be the continuing and surviving person or the continuing or surviving person shall expressly assume the obligations of the Borrower including all of the obligations under this Agreement and the other Loan Documents, in a manner reasonably acceptable to the Administrative Agent, and (A2) the Borrower or such continuing or surviving person, as applicable, remains organized under the laws of the United States, any state thereof or the District of Columbia, (x) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (By) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that (A) if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), Party and (CB) to the extent any Foreign Subsidiary may merge into or consolidate with any person other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction than the Borrower or a series wholly owned Subsidiary receives any consideration in connection therewith, then such transaction shall be considered as an investment under the applicable paragraph of transactions, to Borrower or any wholly-owned Subsidiary, Section 6.04) and (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fz) the Borrower and the Subsidiaries may make Permitted Acquisitions or any other investment, loan or advance permitted pursuant to Section 6.04 (including by merger), and (G) Holdings and the Subsidiaries may engage in any enter into Permitted ReorganizationJoint Ventures.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, exceptabove unless such Asset Sale is:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration that is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of; provided that at least 75% of such consideration is cash, cash equivalents or Permitted Investments; provided further that the Net Cash Proceeds of any such sale, transfer, lease or disposition shall be applied substantially concurrently with the receipt thereof to prepay then-outstanding Term Loans pursuant to Section 2.13(a);
(ii) a Receivables Transaction; provided that (x) the material terms and conditions and the structure of such Receivables Transaction have not been objected to by the Required Lenders (within fifteen (15) Business Days of disclosing such terms, conditions and structure to the Lenders), (y) any Liens granted in connection with such Receivables Transaction shall comply with the terms of Section 6.02(p), (z) the aggregate Receivables Transaction Amount outstanding at any time in respect of all Receivables Transactions does not exceed an amount equal to (x) $162,500,000 minus (y) the aggregate amount of Indebtedness under the ABL Facility Credit Agreement incurred pursuant to Section 6.01(y) together with the aggregate Receivables Transaction Amount outstanding (any Receivables Transaction meeting all the criteria of this Section 6.05(b)(ii) being referred to herein as a “Permitted Receivables Transaction”);
(iii) a Syndication Transaction, provided that the aggregate amount or value of the consideration received by any Permitted Syndication Subsidiary and/or the Borrower and the other Subsidiaries from third parties in connection with such Syndication Transaction (or series of Syndication Transactions), except for the Syndication Transactions listed on Schedule 6.05(b) (the “Syndication Proceeds”), when added to the aggregate Syndication Proceeds from all previous Permitted Syndication Transactions on or after the Closing Date does not exceed $30,000,000 (any Syndication Transaction meeting the criteria of this Section 6.05(b)(iii) being referred to herein as a “Permitted Syndication Transaction”);
(iv) any Permitted Interest Transfer;
(v) for the sale or other disposition consummated by the Borrower or any of the Subsidiaries after the Closing Date of assets constituting a subsidiary or business unit or units of the Borrower or the Subsidiaries (including a Facility) or the interest of the Borrower or the Subsidiaries therein, provided that (i) such sale or other disposition shall be made for fair value on an arm’s-length basis and (ii) the consideration received for such sale or other disposition constitutes or would constitute a Permitted Acquisition, Permitted Joint Venture or Permitted Syndication Subsidiary in accordance with the definition thereof;
(vi) the Borrower and the Subsidiaries may abandon, allow to lapse or otherwise dispose of intangible property that the Borrower or such Subsidiary shall determine in its reasonable business judgment is immaterial to the conduct of its business;
(vii) forgiveness of any loans or advances made pursuant to Section 6.04(e);
(viii) transfers of property subject to casualty or a condemnation proceeding;
(ix) Restricted Payments permitted pursuant to Section 6.06;
(x) a disposition of assets, whether of real or personal property, by the Borrower or any Subsidiary (whether of real or personal property), including to any Governmental Authority, in connection with the closure of a Hospital in an amount not to exceed $10,000,000 in any fiscal year; or
(xi) any investment, loan or advance permitted pursuant to Section 6.04. For the purposes of Section 6.05(b)(i), the following will be deemed to be cash:
(i) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or a Subsidiary (other than subordinated Indebtedness of the Borrower or a Subsidiary Guarantor) and the release of the Borrower or such Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Sale;
(ii) securities, notes or other obligations received by the Borrower or any Subsidiary of the Borrower from the transferee that are converted by the Borrower or such Subsidiary into cash or cash equivalents (including Permitted Investments) within 180 days following the closing of such Asset Sale;
(iii) Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Asset Sale, to the extent that the Borrower and each other Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Sale;
(iv) consideration consisting of Indebtedness of the Borrower (other than subordinated Indebtedness) received after the Closing Date from persons who are not the Borrower or any Subsidiary; and
(v) any Designated Non-Cash Consideration received by the Borrower or any Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this covenant that is at that time outstanding, not to exceed $20,000,000 (with the fair market value (determined of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of value). Any Asset Sale made pursuant to this Section 6.05(b) (other than any Asset Sale made pursuant to Section 6.05(b)(i)) by a Loan Party to a Subsidiary that is not a Loan Party, including pursuant to a Permitted Syndication Transaction or Permitted Interest Transfer, together with the investments specified in clause (vix) of the last sentence of Section 6.04, shall not exceed $20,000,000 in the aggregate. To , the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Non-Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingParty Cap.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge The Company will not, and will not permit its Material Subsidiaries to, merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease assign, lease, sublease, or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets any substantial part of any asset (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or and the Company will not, and will not permit any Subsidiary to, purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part (to the extent such assets constitute one or more distinct business units or operations) of the assets of any other personPerson, except that that:
(ia) the Borrower and any Company or a Material Subsidiary may purchase acquire another corporation by merger, provided that, if the Company is a party to such merger, the Company is the surviving corporation, and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately provided further that after giving effect thereto to such merger, no Event of Default or Unmatured Event of Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.exist;
(b) Make any Asset Sale Material Subsidiary may merge or consolidate with or into, or sell or otherwise permitted under paragraph dispose of any or all of its assets to, the Company or another Subsidiary, and any Material Subsidiary that is not a Borrowing Subsidiary may sell all or substantially all of its assets; provided that (ai) aboveafter giving effect to such merger, exceptconsolidation, sale or other disposition, no Event of Default or Unmatured Event of Default shall exist, and (ii) in the case of an asset sale by such a Material Subsidiary, the assets to be sold do not constitute a material amount of the assets of the Company and its Subsidiaries, taken as a whole; and
(c) the Company or any Subsidiary may acquire the assets or equity securities of any Person (an "Acquisition"), so long as:
(i) in a transaction referred to in Section 6.03; provided that such Acquisition has been approved by the aggregate fair market value board of all assets sold, transferred, leased directors (or disposed equivalent) or shareholders (or equivalent) of pursuant to this clause (i) shall not exceed $10,000,000such Person;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05are used in, or the Required Lenders Person acquired is in, the same business as the Company or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear related line of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.business; and
Appears in 1 contract
Samples: Credit Agreement (Donnelley Enterprise Solutions Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing or would result therefrom,
(Ai) the merger, consolidation or amalgamation of any wholly owned Subsidiary may merge or any other Person with or into the Borrower (x) in a transaction in which the Borrower is the survivor or (y) in a transaction in which the Borrower is not the survivor (such surviving corporationPerson, the “Successor Borrower”); provided that (A) such transaction shall not cause the Borrower to fail to be in compliance, on a Pro Forma Basis, with the Senior Secured Leverage Ratio Test, (B) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any wholly owned state thereof, the District of Columbia or any territory thereof, (C) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (D) each guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall confirm that its guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (E) each guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to the Collateral Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and/or its Guarantee thereof, as applicable, (F) each mortgagor of the Mortgaged Property, unless it is the other party to such merger, consolidation or amalgamation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and/or its Guarantee thereof, as applicable, and (G) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, consolidation or amalgamation and such supplement to this Agreement or any Security Document comply with this Agreement; provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement,
(ii) the merger, consolidation or amalgamation of any Subsidiary may merge with or into the Borrower or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is the Borrower or, if the Borrower is not a wholly owned party to such transaction, a Subsidiary Loan Party, and no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration,
(provided iii) the merger, consolidation or amalgamation of any Subsidiary that if is not a Subsidiary Loan Party into or with any party to any such transaction Subsidiary that is not a Subsidiary Loan Party, ,
(iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower determines in good faith that such transaction liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, or
(v) any Subsidiary may merge, consolidate or amalgamate with or into any other person in order to effect an Investment permitted pursuant to Section 7.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan PartyParty if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 6.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (Cc) shall be made in compliance with Section 7.07 and the aggregate gross proceeds of any Foreign Subsidiary may merge into such sales, transfers, leases or consolidate with other dispositions plus the aggregate gross proceeds of any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its businessassets sold, property or assets may be conveyed, soldtransferred, leased, transferred licensed or otherwise disposed ofof in reliance on clause (g) below, shall not exceed, in one transaction any fiscal year of the Borrower, the greater of (x) $50,000,000 and (y) 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease or a series other disposition for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable;
(d) Sale and Lease Back Transactions permitted by Section 7.03;
(e) Investments permitted by Section 7.04, Permitted Liens and Restricted Payments permitted by Section 7.06;
(f) the sale or other disposition of transactionsdefaulted receivables and the compromise, to Borrower settlement and collection of receivables in the ordinary course of business or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up in bankruptcy or dissolved, or all or any other proceedings concerning the other account party thereon and not as part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.an accounts receivables financing transaction;
(bg) Make any Asset Sale sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted under paragraph by this Section 7.05 (aor required to be included in this clause (g) abovepursuant to Section 7.05(c)); provided, except:
that (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased , licensed or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed exceed, in any fiscal year of the Borrower, the greater of (x) $10,000,000;
95,000,000 and (y) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease, license or other disposition for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable, (ii) sales, transfers no Default or other dispositions set forth in Schedule 6.05;
Event of Default exists or would result therefrom and (iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to the Net Proceeds thereof are applied in accordance with Section 6.06(a2.08(c);
(vh) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a transaction permitted Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation (i) involving the Borrower, the Borrower is the surviving corporation or such merger, consolidation or amalgamation shall otherwise satisfy the requirements of subsection (b)(i) above and (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(i) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of its Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (i) of the definition of “Net Proceeds”;
(l) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 2.08(c) (without duplication of any amounts applied in accordance with Section 2.08(c) pursuant to Section 6.04; and7.01(v));
(vim) any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract tort or other Asset Sale claims of any kind to the extent that any of the foregoing could not reasonably be expected to have a Material Adverse Effect;
(xn) any exchange of assets for consideration services and/or other assets of comparable or greater value; provided, that (i) at least 7590% of which is cashthe consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (yii) such consideration is at least equal to in the fair market value event of the assets being sold, transferred, leased or disposed of and (z) the a swap with a fair market value (as determined in good faith by the board Borrower) in excess of directors $10,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the Borrower) in excess of $20,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or the Borrower; provided, that the Net Proceeds, if any, thereof are applied in accordance with Section 2.08(c); provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (n) shall not exceed, in any fiscal year of the Borrower, the greater of $50,000,000 and 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable and (B) no Default or Event of Default exists or would result therefrom; and
(o) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other similar governing body obligation with or to a person (other than the Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the entity making consideration in respect of such dispositionsale or acquisition. Notwithstanding anything to the contrary contained in Section 7.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 7.05 (other than sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) of this Section 7.05) unless such disposition is for fair market value (as determined in good faith by the Borrower), or if not fair market value, the shortfall is permitted as an Investment under Section 7.04 and (ii) no sale, transfer or other disposition of assets in excess of $15,000,000 shall be permitted by paragraph (g) of this Section 7.05 unless such disposition is for at least 75% cash consideration; provided, that for purposes of clause (ii), (a) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet delivered pursuant to Section 6.04(a) or (b) or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Term Credit Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all assets sold, transferred, leased or disposed of other Designated Non-Cash Consideration received pursuant to this clause (vic) that is at that time outstanding, not to exceed the greater of $35,000,000 and 3.0% of Consolidated Total Assets (as of the end of the fiscal quarter immediately prior to the date such sale, disposition or transfer of assets was entered into for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall not exceed $20,000,000 in the aggregatebe deemed to be cash. To the extent any Subsidiary or Collateral is sold as disposed of in a transaction expressly permitted by this Section 6.057.05 to any Person other than Holdings, the Borrower or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or CollateralSubsidiary, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Loan Documents, and the Agents Administrative Agent shall take all take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, Borrower in order to effect evidence the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) or any capital stock of the Borrower or less than all the Equity Interests of other equity interest in any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personperson or any assets with an aggregate fair market value in excess of $100,000, except that that:
(ia) the Borrower and any Any Subsidiary may purchase and sell Customer Account Equipment and inventory in the ordinary course of business and business;
(iib) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (Ai) any Domestic Subsidiary (other than IMS Foreign Holdings or any Domestic Borrower) may merge with and into any wholly owned Subsidiary may merge into Domestic Guarantor (other than IMS) or wholly owned Domestic Borrower, so long as the Borrower in a transaction in which the wholly owned Domestic Guarantor or wholly owned Domestic Borrower is the surviving corporationperson, (Bii) any wholly owned Foreign Subsidiary (other than any Foreign Borrower) may merge with and into any Foreign Guarantor or Foreign Borrower organized in the same jurisdiction, so long as the Foreign Guarantor or Foreign Borrower is the surviving person; provided, in the case of clause (ii), that all of the Capital Stock (and warrants to purchase or rights to subscribe for, or securities convertible into or consolidate with any exchangeable for, Capital Stock) of such surviving person, other wholly than directors' or similar qualifying shares required by applicable law, after giving effect to the merger, is owned Subsidiary directly by IMS Foreign Holdings, free and clear of all Liens; and provided further, in a transaction in which the surviving entity is a wholly owned Subsidiary case of clauses (i) and (ii), that no person other than the Borrower or a wholly owned Subsidiary Borrower or wholly owned Guarantor receives any consideration (provided that if any party to in any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), merger;
(Cc) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower IMS and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value investment or acquisition of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments expressly permitted pursuant to Section 6.06(aSections 6.04(a) through (i);
(vd) in a transaction permitted pursuant subject to Section 6.04; and
(vi) the provisions of any other Asset Sale (x) applicable Security Document, the Subsidiaries may sell, transfer, lease or otherwise dispose of assets for cash consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or otherwise disposed of and of, provided that (zi) the fair market value Non-Equity Net Proceeds thereof are applied in accordance with Section 2.09(d)(iii), (determined ii) the aggregate consideration received in good faith by the board of directors or other similar governing body of the entity making such disposition) respect of all assets sold, transferred, leased or disposed of pursuant to transactions under this clause (vid) shall not exceed $20,000,000 2,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the fiscal year and (iii) no sale may be made of any Subsidiary Capital Stock (or Collateralany warrant to purchase or right to subscribe for or security convertible into or exchangeable for Capital Stock) of any Subsidiary;
(e) subject to Section 6.15, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, IMS and the Agents Subsidiaries may effect Permitted Intercompany Transfers, other than Permitted Intercompany Transfers outside the ordinary course of business if (i) an Event of Default or (ii) a Default under paragraph (b) or (c) of Article VII shall take all actions reasonably requested by have occurred and be continuing; and
(f) the applicable Loan Party, at the sole cost Subsidiaries may engage in Permitted Sale and expense of the applicable Loan Party, in order to effect the foregoingLease-Back Transactions.
Appears in 1 contract
Samples: Credit Agreement (International Manufacturing Services Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other person, or permit any other person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of related transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or Dispose of the Borrower or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part substantially all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell Disposition of inventory in the ordinary course of business and by the Parent or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Parent or any Subsidiary or, with respect to operating leases, otherwise for Fair Market Value on market terms (as determined in good faith by a Borrower), (iii) the Disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Parent or any Subsidiary or (iv) the Disposition of Permitted Investments 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 or would result therefrom, (Ai) the merger, amalgamation or consolidation of any wholly owned Subsidiary may merge (other than any Borrower) with or into the a Borrower in a transaction in which the such Borrower is the surviving corporationsurvivor, (Bii) the merger, amalgamation or consolidation of any wholly owned Subsidiary may merge (other than any Borrower) with or into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a wholly owned Subsidiary Loan Party organized in a Qualified Jurisdiction and, in the case of each of clauses (i) and (ii), no person other than the a Borrower or a wholly owned Subsidiary Loan Party receives any consideration (provided unless otherwise permitted by Section 6.04), (iii) the merger, amalgamation or consolidation of any Subsidiary that if is not a Subsidiary Loan Party with or into any party to any such transaction other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving liquidation or dissolution or change in form of entity of any Subsidiary (other than any Borrower) if (x) a Borrower determines in good faith that such transaction shall be a Loan Partyliquidation, dissolution or change in form is in the best interests of the Parent and is not materially disadvantageous to the Lenders and (y) the same meets the requirements contained in the proviso to Section 5.01(a), (Cv) any Foreign Subsidiary (other than any Borrower) may merge into merge, amalgamate or consolidate with any other Foreign Subsidiaryperson in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary (unless otherwise permitted by Section 6.04), which shall be a Loan Party if the merging, amalgamating or consolidating Subsidiary was a Loan Party (Dand organized in a Qualified Jurisdiction if the merging, consolidating or amalgamating subsidiary was a Loan Party organized in a Qualified Jurisdiction) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (vi) any Subsidiary (other than any Borrower) may be liquidatedmerge, wound up amalgamate or dissolved, or all or consolidate with any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, other person in one transaction or a series of transactions, order to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any effect an Asset Sale otherwise permitted under paragraph pursuant to this Section 6.05;
(ac) aboveDispositions to the Parent or a Subsidiary; provided, except:that any Dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this clause (c) shall be made in compliance with Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and Restricted Payments permitted by Section 6.06;
(f) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);
(g) other Dispositions of assets to persons other than the Parent and its Subsidiaries; provided, that (i) the Net Proceeds thereof, if any, are applied in accordance with Section 2.09(b) to the extent required thereby and (ii) any such Dispositions shall comply with the final sentence of this Section 6.05;
(h) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or amalgamation involving a Borrower, such Borrower is the surviving entity or the requirements of Section 6.05(n) are otherwise complied with;
(i) leases, licenses or subleases or sublicenses of any real or personal property in a transaction referred to in Section 6.03; provided that the aggregate fair market value ordinary course of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000business;
(iij) sales, transfers Dispositions of inventory in the ordinary course of business or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% Dispositions or abandonment of which is cash, (y) such consideration is at least equal to the fair market value Intellectual Property of the assets being sold, transferred, leased or disposed of Parent and (z) the fair market value (its Subsidiaries determined in good faith by the board management of directors a Borrower to be no longer economically practicable to maintain or other similar governing body useful or necessary in the operation of the entity making such dispositionbusiness of the Parent or any of the Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale or Recovery Event pursuant to clause (a) or (b) of all assets sold, transferred, leased or disposed the definition of “Net Proceeds”;
(l) the purchase and Disposition (including by capital contribution) of Permitted Receivables Facility Assets including pursuant to Qualified Receivables Facilities;
(m) any exchange or swap of assets (other than cash and Permitted Investments) for services and/or other assets (other than cash and Permitted Investments) of comparable or greater value or usefulness to the business of the Parent and the Subsidiaries as a whole, determined in good faith by the management of a Borrower; and
(n) other transactions effected (including mergers, consolidations or acquisitions of “shell” entities) for the sole purpose of reincorporating or reorganizing the Parent or any Subsidiary (other than any Borrower) under the laws of the United States of America or any State thereof or the District of Columbia, Switzerland, the United Kingdom or any jurisdiction that is a member state of the European Union as of the Closing Date, in each case, as applicable; provided that (i) a Borrower shall have provided the Administrative Agent with reasonable advance notice of any transactions as described above in this clause (vin), (ii) subject to the Agreed Guarantee and Security Principles, the Lux Borrower shall ensure that, if the respective entity subject to any action described above was a Guarantor, the applicable reincorporated or reorganized entity shall be a Guarantor and shall grant a security interest in substantially all of those of its assets that constituted part of the Collateral immediately prior to such reincorporation or reorganization and (iii) the Administrative Agent shall have concluded (acting reasonably) that, after giving effect to any replacement guarantees and security to be provided pursuant to preceding clause (ii), such transactions are not adverse to the Lenders in any material respect (it being understood and agreed that such a reincorporation or reorganization into any of the United States of America or any State thereof or the District of Columbia, Switzerland, the United Kingdom or any jurisdiction that is a member state of the European Union as of the Closing Date shall be permitted if the requirements of preceding clauses (i) and (ii) are satisfied). Notwithstanding anything to the contrary contained above, this Section 6.05 shall not exceed $20,000,000 in restrict, at any time, the aggregate. To sale of Unrestricted Margin Stock so long as any such sale meets the extent any Subsidiary or Collateral is sold as permitted by requirements of the last paragraph of this Section 6.05. Notwithstanding anything to the contrary contained in Section 6.05, no Disposition of assets under Section 6.05(g) or, solely with respect to Sale and Lease-Back Transactions referred to in clause (b) of Section 6.03, under Section 6.05(d), or pursuant to the Required Lenders immediately preceding sentence, shall in each case be permitted unless (i) such Disposition is for Fair Market Value, and (ii) at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash or all the LendersPermitted Investments; provided, as applicable, waive that the provisions of this clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a Fair Market Value of less than $10,000,000 or to other transactions involving assets with a Fair Market Value of not more than $35,000,000 in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (ii), each of the following shall be deemed to be cash: (a) the amount of any liabilities (as shown on the Parent’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Parent or such Subsidiary from the transferee that are converted by the Parent or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Parent or any of its Subsidiaries in such Disposition or any series of related Dispositions, having an aggregate Fair Market Value not to exceed the greater of $120,000,000 and a percentage of Consolidated Total Assets equal to the Applicable CTA Percentage when received (with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Notwithstanding anything to the contrary contained in this Section 6.05 or, with respect to the sale Sale and Lease-Back Transactions referred to in clause (b) of Section 6.03, under Section 6.05(d), shall not permit any Loan Party to make any Disposition of Material Intellectual Property to any Subsidiary (other than another Loan Party) or any Unrestricted Subsidiary; provided that nothing in this sentence shall prohibit any non-exclusive (other than exclusive distribution or other similar within a specified jurisdiction) license or sublicense of Material Intellectual Property to, or use of Material Intellectual Property by, any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingUnrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Mallinckrodt PLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)consideration, (Ciii) the merger or consolidation of any Foreign Subsidiary may merge that is not a Subsidiary Loan Party into or consolidate with any other Foreign Subsidiary, Subsidiary that is not a Subsidiary Loan Party or (Div) the liquidation or dissolution or change in form of entity of any Subsidiary may be liquidated, wound up (other than the Borrower) if the Borrower determines in good faith that such liquidation or dissolved, or all or any part dissolution is in the best interests of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and is not materially disadvantageous to the Subsidiaries may make Permitted Acquisitions and Lenders;
(Gc) Holdings and sales, transfers, leases or other dispositions to the Subsidiaries may engage Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party shall be made in compliance with Section 6.07; provided, further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance upon this paragraph (c) shall not exceed, in any Permitted Reorganization.fiscal year of the Borrower, $50 million;
(bd) Make any Asset Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant to in reliance upon this clause paragraph (ig) shall not exceed exceed, in any fiscal year of the Borrower, the greater of $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted 100 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 6.06(a5.04; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(vh) any merger or consolidation in connection with a transaction permitted Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries;
(k) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided that the Net Proceeds thereof are applied in accordance with Section 6.042.11(b); and
(vil) any the sale of the Assets Targeted for Sale. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other Asset Sale disposition of assets shall be permitted by this Section 6.05 (xother than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for consideration fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% of which is cash, (y) such cash consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors no sale, transfer or other similar governing body disposition of the entity making such disposition) assets in excess of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) $5 million shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions paragraph (g) of this Section 6.05 with respect to unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (iii) and (iv), the sale amount of any secured Indebtedness or other Indebtedness of a Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to that is not a Loan PartyParty (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower Parent or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part substantially all of the assets of any other person or line of business of such person, except that (i) the Borrower Parent and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ax) any wholly owned Subsidiary may merge into or amalgamate or consolidate with or transfer all or substantially all of its assets to the Borrower either of the Borrowers in a transaction in which one of the Borrower Borrowers is the surviving corporation, (By) any wholly owned Subsidiary may merge into or amalgamate or consolidate with or transfer all or any substantial part of its assets to any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than one or more of the Borrower Borrowers or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), ) and (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (Fz) the Borrower Parent and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganizationother investments permitted by Section 6.04.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) shall not exceed $20,000,000 50,000,000 in any fiscal year; provided that, (x) in the aggregate. To case of any Asset Sale of a Collateral Vessel (or any charter arrangements or similar agreements relating thereto), (I) the Borrower Agent shall give reasonable advance notice to the Administrative Agent of the intention of Parent or any Subsidiary to make such Asset Sale and (II) such Asset Sale shall be conducted on arms’ length terms for an amount not less than the fair market value of the Collateral Vessel so disposed of, as reasonably determined in good faith by the Parent’s board of directors and (y) to the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or applicable asset does not constitute Term Facility First Priority Collateral, (A) the Net Cash Proceeds of such Subsidiary or Collateral (unless sold to a Loan Party) Asset Sale shall be sold free applied in accordance with Section 2.13 and clear of (B) following such application, the Liens created by the Security Documents, and the Agents Parent shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, be in order to effect the foregoingcompliance with Section 6.10 on a pro forma basis.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of the assets of any Obligated Party and their Subsidiaries, taken as a whole (whether now owned or hereafter acquired) of the Borrower ), or less than all the any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower Borrowers and any Subsidiary may Subsidiaries may, subject to Section 2.05(b), purchase and sell inventory Inventory and Vessels in the ordinary course of business and sell or scrap Obsolete Equipment (sales and/or leases of barges and other equipment by Jeffboat to third parties or to any of the Obligated Parties and their Subsidiaries shall in all cases be deemed to be dispositions in the ordinary course of business), (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (A) (i) any wholly owned Subsidiary or a Borrower may merge into the a Borrower in a transaction in which a Borrower is the surviving corporation and (ii) any Obligated Party may merge into another Obligated Party in a transaction in which a Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the a Borrower or a wholly owned Subsidiary receives any consideration (provided provided, that if any party to any such transaction is involves a Loan PartyDomestic Subsidiary, the surviving entity of such transaction shall be a Loan Partywholly owned Domestic Subsidiary and no person other than the Borrower or a wholly owned Domestic Subsidiary shall receive any consideration, and provided, further, that if any such transaction involves a Guarantor, the surviving entity shall be a Guarantor), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign SubsidiarySubsidiary in a transaction in which the surviving entity is a Subsidiary and the value of the Borrower’s direct or indirect interest in such surviving entity immediately after such merger or consolidation is at least equal to the aggregate value of its direct or indirect interest in the merging or consolidating Foreign Subsidiaries immediately prior to such merger or consolidation, (D) any Subsidiary the Borrowers may enter into Permitted Sale/Leaseback Transactions, (E) if at the time thereof and immediately after giving effect thereto Unused Availability is not less than 20% of the Borrowing Base (determined without giving effect to the assets to be liquidatedacquired), wound up or dissolvedthe Borrowers may purchase, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred lease or otherwise disposed of, acquire (in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any substantial part of the assets or Equity Interests of any other Person; provided, that, (1) to the extent required pursuant to Section 5.11, such Person shall become a Borrower or a Guarantor hereunder, as determined by Agent, and, (2) subject to the eligibility requirements set forth in Section 1.01, the Accounts and Inventory so acquired shall not be deemed to be Eligible Accounts or Eligible Inventory until such time as Agent and the Lenders shall have received, in form and content satisfactory to the Agent in its sole discretion, the results of such field examinations, appraisals and other due diligence required by Agent in connection therewith, and (F) the Borrowers may enter into the Permitted Transactions, (iii) the Obligated Parties and any Subsidiary may consummate transactions contemplated by the NRG Agreements, (iv) the Obligated Parties and any Subsidiary may engage in Asset Sales to the extent provided for in subsection (b) below, and (v) Holdings may sell, transfer or otherwise dispose of all or any substantial part of its businessassets or the Equity Interests of any of its Subsidiaries (other than, property in each case, the assets and Equity Interests of CBL and its Subsidiaries), or assets may be conveyedpurchase, sold, leased, transferred lease or otherwise disposed of, acquire (in one transaction or a series of transactions, to ) all or any Foreign Subsidiary, (F) substantial part of the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in assets or Equity Interests of any Permitted Reorganizationother Person.
(b) Make Neither the Obligated Parties nor any Subsidiary shall engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cash, (yii) such consideration is at least equal to the fair market value (as determined in good faith by the applicable Obligated Party’s board of directors or analogous body) of the assets being sold, transferred, leased or disposed of of, and (ziii) the fair market value (as determined in good faith by the Borrowers’ board of directors or other similar governing body of the entity making such dispositionanalogous body) of all assets sold, transferred, leased or disposed of pursuant to this clause paragraph (vib) shall not exceed $20,000,000 25,000,000 in the aggregate. To aggregate during the extent any Subsidiary or Collateral is sold as permitted by term of this Section 6.05Agreement; provided, or the Required Lenders or all the Lenders, as applicable, waive that the provisions of this Section 6.05 with respect 6.04(b) shall not apply to Permitted Asset Sales and transactions contemplated by the NRG Agreements, and the limitations set forth in Section 6.04(b)(iii) shall not apply to the sale by any Obligated Party of its Equity Interests in any Subsidiary non-Domestic Subsidiaries or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created any Asset Sales by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoingany non-Domestic Subsidiary.
Appears in 1 contract
Samples: Loan Agreement (Jeffboat LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, amalgamate with or consolidate with any other personPerson, or permit any other person Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or less than all any of its Subsidiaries or preferred equity interests of the Equity Interests Borrower or any of any Subsidiaryits Subsidiaries, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) the Borrower and any Subsidiary may purchase and sell inventory sale of inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Borrower and its Subsidiaries, (ii) the sale of any other asset in the ordinary course of business by the Borrower and its Subsidiaries, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower and its Subsidiaries or (iv) the sale of Permitted Investments 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 continuing, (Ai) the merger or consolidation of any wholly owned Subsidiary may merge of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporationentity, (Bii) the merger or consolidation of any wholly owned Subsidiary may merge of the Borrower, including without limitation, any Subsidiary that is a Loan Party, into or consolidate with any other wholly owned Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, (iii) the surviving entity merger, amalgamation or consolidation of such transaction shall be any Subsidiary of the Borrower that is not a Loan Party into or with any other Subsidiary of the Borrower that is not a Loan Party), or (Civ) any Foreign Subsidiary may merge into the liquidation, winding up, or consolidate with any other Foreign Subsidiary, (D) dissolution of any Subsidiary may be liquidatedof the Borrower if the Borrower determines in good faith that such liquidation, wound up or dissolvedwinding up, or all dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders taken as a whole or any part (v) the change in form of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series entity of transactions, to the Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part if the Borrower determines in good faith that such change in form is in the best interests of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and is not materially disadvantageous to the Subsidiaries may make Permitted Acquisitions Lenders taken as a whole; for the avoidance of doubt it is agreed that each of Frank’s International Trinidad Unlimited, Frank’s International Ecuador, C.A. and (G) Holdings and Frank’s International Venezuela C.A. shall be permitted to change its form of entity after the Subsidiaries may engage in any Permitted Reorganization.Closing Date;
(bc) Make sales, transfers, leases or other dispositions to the Borrower or a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); provided that if as a result thereof any Asset Subsidiary not previously a Material Subsidiary becomes a Material Subsidiary, such Subsidiary complies with the provisions of Section 5.10(b);
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and dividends permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in by this Section 6.036.05; provided that the aggregate fair market value gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of pursuant to in reliance upon this clause paragraph (g) shall not exceed, in any fiscal year of the Borrower, 10.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; and provided further that after giving effect thereto, no Default or Event of Default shall have occurred;
(h) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Subsidiary, the surviving or resulting entity shall not exceed $10,000,000be a Subsidiary;
(iii) sales, transfers licensing and cross-licensing arrangements involving any technology or other dispositions set forth intellectual property of the Borrower and its Subsidiaries in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04the ordinary course of business; and
(vij) abandonment, cancellation or disposition of any other Asset Sale (x) for consideration at least 75% intellectual property of which is cashthe Borrower or any of its Subsidiaries in the ordinary course of business. Notwithstanding anything to the contrary contained in Section 6.05 above, (yi) such consideration is at least equal the Borrower may, so long as no Event of Default shall have occurred and be continuing or would result therefrom, sell, grant or otherwise issue Equity Interests to the fair market value members of management of the assets being soldBorrower or any of the Subsidiaries of the Borrower pursuant to stock option, transferredstock ownership, leased stock incentive or disposed of and similar plans, (zii) the fair market value (determined in good faith by the board of directors no sale, transfer or other similar governing body disposition of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as be permitted by this Section 6.056.05 (other than sales, transfers, leases or other dispositions to the Required Lenders Borrower or all the Lendersany of its Subsidiaries pursuant to paragraph (c) hereof) unless such disposition is for fair market value, as applicable(iii) no sale, waive the provisions transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 with respect to unless such disposition is for at least 51% cash consideration and (iv) no sale, transfer or other disposition of assets in excess of U.S. $10,000,000 shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 51% cash consideration; provided that for purposes of clauses (iii) and (iv), the sale amount of any secured Indebtedness or other Indebtedness of a Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to of the Borrower that is not a Loan PartyParty (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order deemed to effect the foregoingbe cash.
Appears in 1 contract
Samples: Revolving Credit Agreement (Frank's International N.V.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) ), other than assets of UCAR constituting an Unrestricted Subsidiary, or any Capital Stock of Global, the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(ia) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by any Subsidiary or the acquisition of any asset of any person in the ordinary course of business or any purchase or sale of Permitted Investments in the ordinary course of business;
(iib) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (A) continuing, the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Wholly Owned Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Subsidiary (which shall be a domestic Subsidiary if the non-surviving person shall be a Domestic Subsidiary and a Guarantor if the non-surviving person shall be a Guarantor), and no person other than the Borrower Global or a wholly owned Wholly Owned Subsidiary receives any consideration consideration;
(provided that if c) Sale and Lease-Back Transactions permitted by Section 7.03;
(d) investments permitted by Section 7.04;
(e) subject to Section 7.07, sales, leases or transfers (i) from Global or any party Subsidiary to any such transaction is Global or to a Loan Party, the surviving entity of such transaction shall be a Loan Party)domestic Wholly Owned Subsidiary, (Cii) from any Foreign Subsidiary may merge into to any Foreign Wholly Owned Subsidiary or consolidate to Global; (iii) constituting Permitted Subsidiary Transfers; or (iv) constituting Permitted Subsidiary Investments (subject to the limitations set forth in Section 7.04(j));
(f) sales, leases or other dispositions of equipment or real property of the Subsidiaries determined by the Board of Directors or senior management of Global to be no longer useful or necessary in the operation of the business of Global and the Subsidiaries; PROVIDED that (x) the Net Proceeds thereof shall be applied in accordance with any other Foreign Subsidiary, Section 2.10(c) and (Dy) any Subsidiary may be liquidated, wound up or dissolved, or all or any part the fair market value of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof in any one year shall not exceed $4,000,000 in the aggregate;
(g) sales, leases or other dispositions of inventory of the Subsidiaries determined by the Board of Directors or senior management of Global to be no longer useful or necessary in one transaction or a series the operation of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part the business of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower Global and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and Subsidiaries; PROVIDED that the Subsidiaries may engage Net Proceeds thereof shall be applied in any Permitted Reorganization.accordance with Section 2.10(c);
(bh) Make sales or other dispositions of accounts receivable of Subsidiaries in connection with factoring arrangements so long as the aggregate face amount at any Asset Sale otherwise permitted under paragraph time outstanding of receivables subject to such arrangements does not exceed (ai) above, except:$70,000,000 in the aggregate or (ii) $10,000,000 for receivables of Domestic Subsidiaries;
(i) in a transaction referred sales or other dispositions by Global or any Subsidiary of assets (other than receivables, except to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or extent disposed of pursuant to this clause incidentally in connection with an asset disposition otherwise permitted hereby), including Capital Stock of Subsidiaries, for consideration in an aggregate amount not exceeding $300,000,000; PROVIDED that (i) each such disposition shall not exceed $10,000,000;
(ii) sales, transfers be for a consideration determined in good faith by the Board of Directors or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant senior management of Global to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is be at least equal to the fair market value (if any) of the assets being asset sold; (ii) the aggregate amount of all noncash consideration included in the proceeds of any such disposition may not exceed 25% of the fair market value of such proceeds, PROVIDED HOWEVER, that obligations of the type referred to in paragraphs (a) or (e) of the definition of "Permitted Investments" shall be deemed not to be noncash proceeds if such obligations are promptly sold for cash and the proceeds of such sale are included in the calculation of Net Proceeds from such sale; (iii) no Default or Event of Default shall have occurred and be continuing immediately prior to or after such disposition; and (iv) no such disposition shall be made unless UCAR shall be in compliance, on a pro forma basis of the giving effect to such disposition, with the covenants contained in Sections 7.11 and 7.12 recomputed as at the last day of the most recently ended fiscal quarter of UCAR for which financial statements have been delivered under Section 5.04(a) or (b) as if such disposition had taken place on the first day of each relevant period for testing such compliance, and, in the case of any such disposition for consideration in excess of $50,000,000, Global shall have delivered to the Administrative Agent a certificate of Global signed by a Responsible Officer of Global to such effect. Notwithstanding any other provision herein, no Mortgaged Property (other than the Mortgaged Property a portion of which is currently leased to UCAR Graph-Tech Inc.) may be sold, transferred, leased or otherwise disposed of at any time unless the Net Proceeds thereof shall be applied immediately to the prepayment of Obligations in accordance with Section 2.10(c) or within 10 Business Days to the acquisition of property having a value equivalent to or greater than the value of such Mortgaged Property and such newly acquired property is thereupon either made a Mortgaged Property subject to a Mortgage on terms reasonably satisfactory to the Collateral Agent or constitutes an addition to a Mortgaged Property and is subject to the Mortgage on such Mortgaged Property (z) or, if not so applied within 10 Business Days, deposited in a cash collateral account with the fair market value (determined in good faith by Collateral Agent on terms satisfactory to the board of directors or other similar governing body Collateral Agent); and no sale may be made of the entity making such dispositionCapital Stock of (x) of all assets soldGlobal, transferredthe Borrower, leased any LC Subsidiary, UCAR Carbon Company Inc. or disposed of pursuant to this clause UCAR Holdings II Inc. or (viy) shall not exceed $20,000,000 any other Subsidiary, except in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 connection with respect to the sale of all the outstanding Capital Stock of such Subsidiary that is held by Global or any other Subsidiary. Notwithstanding any other provision herein, subject to Section 7.06(f), Global or any Subsidiary may sell or Collateralotherwise transfer to UCAR Graph-Tech Inc. the Mortgaged Property a portion of which is currently leased to UCAR Graph-Tech Inc.;
(j) the sale or other disposition of (i) facilities owned on the Effective Date in Berlin, Germany and Welland, Canada and (ii) real property and the related closed facilities in Sheffield, England; and
(k) the sale or other disposition of all or any part of the Capital Stock of UCAR Graph-Tech Inc., PROVIDED that (i) all the Net Proceeds received by UCAR in respect thereof (which Net Proceeds shall include any repayment of intercompany indebtedness made in connection with such Subsidiary sale or Collateral (unless sold to a Loan Partydisposition) shall be sold free applied immediately to the prepayment of Obligations in accordance with Section 2.10(c) and clear (ii) in the case of a spin off of such Capital Stock to the Liens created by the Security Documentsshareholders of UCAR, all intercompany Indebtedness owed to UCAR shall have been repaid in full and the Agents amount of such repayment shall take all actions reasonably requested by be deemed to be Net Proceeds and shall be applied immediately to the applicable Loan Party, at the sole cost prepayment of Obligations in accordance with Section 2.10(c) (and expense of the applicable Loan Party, in order to effect the foregoingnot reinvested).
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge The Borrower shall not, directly or indirectly, consolidate, amalgamate or merge with or into or consolidate with any other person, wind up or permit any other person to merge convert into (whether or consolidate with itnot the Borrower is the surviving Person), or sell, assign, transfer, lease lease, convey or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the of its properties or assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or more related transactions to, any substantial part of the assets of any other person, except that Person unless:
(i) the Borrower and is the surviving Person or the Person formed by or surviving any Subsidiary such consolidation, amalgamation, merger, winding up or conversion (if other than the Borrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation, partnership or limited liability company organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory of the United States (the Borrower or such Person, as the case may purchase and sell inventory be, being herein called the “Successor Company”); provided that in the ordinary course case where the surviving Person is not a corporation, a co-obligor of business and the Loans is a corporation;
(ii) the Successor Company (if at other than the time thereof Borrower) expressly assumes all the obligations of the Borrower under this Agreement, the Loans and the Security Documents pursuant to a joinder or other agreement in form reasonably satisfactory to the Administrative Agent;
(iii) immediately after giving effect thereto to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction) no Event of Default or Default shall have occurred and be continuing (A) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Subsidiary, (D) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted Reorganization.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above, except:
(i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganizationcontinuing;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the beginning of the applicable four-quarter period (and treating any Indebtedness which becomes an obligation of the Successor Company or any of its Restricted Payments Subsidiaries as a result of such transaction as having been Incurred by the Successor Company or such Restricted Subsidiary at the time of such transaction), either
(A) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 6.06(a6.01(a);; or
(B) the Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be greater than such ratio for the Borrower and its Restricted Subsidiaries immediately prior to such transaction; and
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (z) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $20,000,000 in the aggregate. To the extent any each Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at unless it is the sole cost other party to the transactions described above, shall have by joinder or other agreement in form reasonably satisfactory to the Administrative Agent confirmed that its Guarantee shall apply to such Person’s obligations under this Agreement and expense of the applicable Loan Party, in order to effect the foregoingLoans.
Appears in 1 contract
Samples: Senior Secured Bridge Loan Credit Agreement (Packerware Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of the assets of the Borrower (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and business, (ii) the Borrower or any wholly owned Subsidiary may make Permitted Acquisitions, (iii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ax) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, corporation and (By) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary (or, in order to consummate a Permitted Acquisition, any other person) in a transaction in which the surviving entity is a wholly owned Subsidiary and (except in the case of Permitted Acquisitions) no person other than the Borrower or a wholly owned Subsidiary receives any consideration (consideration, provided that if any party to any such transaction is merger described in this clause (y) shall involve a Loan PartyDomestic Subsidiary, the surviving entity of such transaction merger shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign Domestic Subsidiary, and (Div) any Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Borrower or any wholly-wholly owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Foreign Subsidiary, (F) consummate the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings and the Subsidiaries may engage in any Permitted ReorganizationAcquisition.
(b) Make Engage in any Asset Sale otherwise permitted under paragraph (a) above, except:
above unless (i) in a transaction referred to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) shall not exceed $10,000,000;
(ii) sales, transfers or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other such Asset Sale (x) is for consideration at least 75% of which is cashcash (provided that such 75% requirement shall not apply to any Asset Sale constituting the sale of a business unit if the cash portion of the consideration received therefor is no less than an amount equal to the product of (A) six and (B) the amount of EBITDA for the preceding fiscal year directly attributable to the assets included in such Asset Sale), (yii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (ziii) the fair market value (determined in good faith by the board of directors or other similar governing body of the entity making such disposition) of all assets sold, transferred, leased or disposed of after the Restatement Date pursuant to this clause paragraph (vib) shall not exceed (i) $20,000,000 10,000,000 in any fiscal year or (ii) $15,000,000 in the aggregate. To the extent any Subsidiary or Collateral is sold as permitted by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense of the applicable Loan Party, in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) ), other than assets of the Borrower UCAR constituting an Unrestricted Subsidiary, or less than all the Equity Interests any Capital Stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(ia) the Borrower and any Subsidiary may purchase and sell sale of inventory in the ordinary course of business and by the Borrower or any Subsidiary or the acquisition of any asset of any person in the ordinary course of business;
(iib) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (Ai) the merger of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, corporation and (Bii) the merger or consolidation of any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Wholly Owned Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Subsidiary (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Wholly Owned Subsidiary receives any consideration consideration;
(provided that if c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any party Subsidiary to any such transaction is the Borrower or to a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) any Foreign Subsidiary may merge into or consolidate with any other Foreign domestic Wholly Owned Subsidiary, (Dii) from any foreign Subsidiary may be liquidated, wound up to any foreign Wholly Owned Subsidiary or dissolved, to the Borrower or (iii) constituting Permitted Foreign Transfers;
(i) the lease of all or any part of its businessthe Borrower's facility located in Robinson, Illinois, and (ii) sales, leases or other dispositixxx xx equipment or real property of the Borrower or assets may be conveyed, sold, leased, transferred or otherwise disposed ofthe Subsidiaries determined, in one transaction the case of this clause (ii), by the Board of Directors or a series senior management of transactions, the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any wholly-owned Subsidiary, (E) any Foreign Subsidiary may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed ofthe Subsidiaries; PROVIDED that, in one transaction the case of this clause (ii), the Net Proceeds thereof shall be applied in accordance with Section 2.12(d);
(g) sales, leases or a series other dispositions of transactions, to any Foreign Subsidiary, (F) inventory of the Borrower and the Subsidiaries may make Permitted Acquisitions and (G) Holdings determined by the Board of Directors or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and the Subsidiaries may engage Subsidiaries; PROVIDED that the Net Proceeds thereof shall be applied in any Permitted Reorganization.accordance with Section 2.12(d);
(bh) Make sales or other dispositions of accounts receivable of foreign Subsidiaries in connection with factoring arrangements so long as the aggregate face amount at any Asset Sale otherwise permitted under paragraph (a) above, except:time outstanding of receivables subject to such arrangements does not exceed $50,000,000; and
(i) in a transaction referred sales or other dispositions by the Borrower or any Subsidiary of assets (other than receivables, except to in Section 6.03; provided that the aggregate fair market value of all assets sold, transferred, leased or extent disposed of incidentally in connection with an asset disposition otherwise permitted hereby), including Capital Stock of Subsidiaries, for consideration in an aggregate amount (taken together with any consideration received in respect of transactions permitted pursuant to this clause paragraph (f) above) not exceeding 25% of the Enterprise Value of UCAR, the Borrower and the Subsidiaries as of the Original Closing Date; PROVIDED that (i) each such disposition shall not exceed $10,000,000;
(ii) sales, transfers be for a consideration determined in good faith by the Board of Directors or other dispositions set forth in Schedule 6.05;
(iii) any Permitted Reorganization;
(iv) Restricted Payments permitted pursuant senior management of the Borrower to Section 6.06(a);
(v) in a transaction permitted pursuant to Section 6.04; and
(vi) any other Asset Sale (x) for consideration at least 75% of which is cash, (y) such consideration is be at least equal to the fair market value (if any) of the assets being asset sold, transferred, leased or disposed (ii) the aggregate amount of and (z) all noncash consideration included in the proceeds of any such disposition may not exceed 15% of the fair market value (determined in good faith by the board of directors or other similar governing body such proceeds; PROVIDED, HOWEVER, that obligations of the entity making such dispositiontype referred to in clause (a) or (e) of all assets sold, transferred, leased the definition of "Permitted Investments" (without regard to the maturity or disposed of pursuant to this clause (vithe credit rating thereof) shall not exceed $20,000,000 be deemed non-cash proceeds if such obligations are promptly sold for cash and the proceeds of such sale are included in the aggregate. To calculation of Net Proceeds from such sale, (iii) the extent any Subsidiary or Collateral is sold aggregate Net Proceeds of all such dispositions under this paragraph (i) shall be applied in accordance with Section 2.12(d), except as permitted contemplated by this Section 6.05, or the Required Lenders or all the Lenders, as applicable, waive the provisions last sentence of this Section 6.05 paragraph and (iv) no Default or Event of Default shall have occurred and be continuing immediately prior to or after such disposition; and PROVIDED FURTHER that no sale may be made of the Capital Stock of (x) any Credit Party, UCAR Carbon Company Inc., UCAR Holdings Inc., UCAR Holdings II Inc. or UCAR Holdings III Inc. or (y) except in connection with respect to the sale of all its outstanding Capital Stock that is held by the Borrower in any Subsidiary, the Capital Stock of any other Subsidiary. Upon receipt by the Borrower or any Subsidiary or Collateral, such Subsidiary or Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created Net Proceeds of any transaction contemplated by this paragraph (i), the Security Documents, Borrower shall promptly deliver a certificate of a Responsible Officer to the Administrative Agent setting forth the amount of the Net Proceeds received in respect thereof and whether it shall apply such Net Proceeds to prepay Obligations in accordance with Section 2.12(d) or will use such Net Proceeds to purchase assets useful in the -98- business of the Borrower and the Agents shall take all actions reasonably requested by the applicable Loan Party, at the sole cost and expense Subsidiaries within 12 months of the applicable Loan Party, in order to effect the foregoingsuch receipt.
Appears in 1 contract
