Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired), except that: (a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business; (b) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries; (i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration; (d) the Loan Parties and the Subsidiaries may 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 Reorganization Transactions; (e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; and (f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction.
Appears in 5 contracts
Samples: Credit Agreement (Blackstone Inc.), Credit Agreement (Blackstone Inc.), Credit Agreement (Blackstone Group 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower, except that:
(a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business;
(b) the Guarantors and the Subsidiaries may sell, transferpurchase, lease or otherwise dispose acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any assets other person, except that if at the time thereof and immediately after giving effect thereto no Event of Default or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (i) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party the Borrower or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (z) the Loan Parties Borrower and the Subsidiaries may 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 make Permitted Reorganization Transactions;Acquisitions.
(eb) Engage in any other Asset Sale except:
(i) (A) any such Asset Sale the Loan Parties and the Subsidiaries may sellconsideration for which is at least 80% cash, transfer or otherwise dispose of any assets or property for cash or other (B) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or propertydisposed of, (C) the fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) (other than sales of Equity Interests by Foreign Subsidiaries to investors) shall not exceed in any fiscal year the sum of $5,000,000 plus, with respect to each fiscal year commencing on or after January 1, 2002, the excess, if any, of $5,000,000 over the amount of Asset Sales made by the Borrower and the Subsidiaries during the preceding fiscal year and (D) sales of Equity Interests by Foreign Subsidiaries to investors shall not exceed $10,000,000 in any fiscal year; and
(fii) sales by the Loan Parties and Borrower or the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges of brokerage offices, or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations transfers of the Borrower under this Agreement assets of brokerage offices and the other Loan Documents related assets, to which the Borrower is a party; provided that joint ventures in the case ordinary course of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionbusiness.
Appears in 5 contracts
Samples: Credit Agreement (Fs Equity Partners Iii Lp), Credit Agreement (Cb Richard Ellis Services Inc), Credit Agreement (Cb Richard Ellis Services 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired) of Parent or any Borrower, or any Equity Interests of any Borrower, or less than all the Equity Interests of any Subsidiary (other than a Borrower), 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:
that (ai) the Guarantors Parent and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Default or otherwise dispose Event of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (iv) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party Borrower in a transaction in which such Loan Party Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiw) any wholly owned Subsidiary (other than a Borrower) may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party Parent or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (x) the Loan Parties may make Permitted Acquisitions, (y) Holdings may merge into WellCare Group, Inc., and (z) the Subsidiaries Harmony Transactions may 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 Reorganization Transactions;be consummated.
(eb) the Loan Parties and the Subsidiaries may sellEngage in any Asset Sale permitted under paragraph (a) of this Section unless (i) such Asset Sale is for consideration at least 75% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is this paragraph shall not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that exceed $5,000,000 in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionaggregate.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (Wellcare Health Plans, Inc.), Credit Agreement (Wellcare 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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower or less than all the Equity Interests of any Restricted Subsidiary, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other Person or division or line of business of such Person, except that:
that (ai) the Guarantors Borrower and the Subsidiaries any Restricted Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (i1) any Loan Party or Wholly Owned Restricted Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii2) any Wholly Owned Restricted Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly Owned Restricted Subsidiary in a transaction in which the surviving entity is a Wholly Owned Restricted Subsidiary and no Person (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (3) any Restricted Subsidiary may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other than Restricted Subsidiary (which such recipient Restricted Subsidiary shall be a Loan Party if the disposing Restricted Subsidiary is a Loan Party), (4) any Restricted Subsidiary may liquidate (other than in connection with a merger or a Subsidiary receives any consideration;consolidation which shall be governed by the other clauses of this 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, and (5) the Borrower and the Restricted Subsidiaries may make Permitted Acquisitions, including by means of mergers or consolidations.
(db) the Loan Parties and the Subsidiaries may effect sales and transfers Make any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of assets and mergerswhich consists of cash, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantorii) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed the greater of (i) $100,000,000 and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations (ii) 3.0% of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that Consolidated Net Tangible Assets in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionfiscal year.
Appears in 3 contracts
Samples: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties Hydrocarbons and other inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (ix) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party the Borrower or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (z) the Loan Parties Borrower and the Subsidiaries may 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 make Permitted Business Investments in order to effect Permitted Reorganization Transactions;accordance with Section 6.04.
(eb) Engage in any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale (x) involves the Loan Parties sale, transfer, lease or other disposition of Hydrocarbon Interests for consideration that consists of Hydrocarbon Interests or a combination of Hydrocarbon Interests and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other (y) is for consideration reasonably determined by the Loan Parties to be in an amount at least 75% of which is cash, (ii) such consideration is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is this paragraph (b) shall not the Borrowerexceed, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) aboveaggregate, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactiongreater of (A) $75,000,000 or (B) 7.5% of PV-10 Value.
Appears in 3 contracts
Samples: Second Lien Credit Agreement (Atp Oil & Gas Corp), Credit Agreement (Atp Oil & Gas Corp), Third Amended and Restated Credit Agreement (Atp Oil & Gas Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired), except that:
(a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business;
(b) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(c) (i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party entity and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration;
(d) the Loan Parties and the Subsidiaries may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction.
Appears in 2 contracts
Samples: Credit Agreement (Blackstone Group L.P.), Credit Agreement (Blackstone Group L.P.)
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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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 substantially all of the assets of any other Person, except that:
that (ai) the Guarantors Borrower and any Subsidiary may purchase and sell inventory and grant licenses and sublicenses of Intellectual Property that do not interfere in any material respect with the Subsidiaries may sell assets or properties ordinary conduct of business of the Loan Parties and their Subsidiaries, in each case, in the ordinary course of business;
, (bii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (x) any Wholly Owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (y) any Wholly Owned Subsidiary (other than the Borrower) may merge into or consolidate with any other Wholly Owned Subsidiary (other than the Borrower) 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 (z) the Guarantors Borrower and the Subsidiaries may make Permitted Acquisitions, (iii) any Subsidiary (other than the Borrower) may dissolve, liquidate or wind up its affairs at any time if the assets of such Subsidiary are transferred to a Loan Party or, in the case of the dissolution, liquidation or winding up of a Subsidiary that is not a Loan Party, to a Loan Party or any other Subsidiary and (iv) the Borrower or any of its Subsidiaries may sell, transfer, lease or otherwise dispose of any all or substantially all of their assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if to the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration;
(d) the Loan Parties and the Subsidiaries may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a partythereof; provided that in the case of any transaction such sale, transfer, lease or other disposition by a Loan Party, the Person to which such sale, transfer, lease or other disposition is made shall be the Borrower or a Wholly Owned Subsidiary of the Borrower that is a Loan Party.
(b) Make any Asset Sale otherwise permitted under clauses paragraph (ca) above unless (i) such Asset Sale is for consideration at least 85% of which is cash, (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (diii) above, and if the transaction has a fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed (i) $25,000,000 20,000,000 in any fiscal year or more, clauses (eii) and (f) above, $80,000,000 in the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionaggregate.
Appears in 2 contracts
Samples: Term Loan Agreement (Sportsman's Warehouse Holdings, Inc.), Credit Agreement (Sportsman's Warehouse Holdings, 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part substantially all of the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
that (a) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory, materials and equipment in the ordinary course of business;
business and may license intellectual property in the ordinary course of business and (b) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (i) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party the Borrower or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (iii) the Loan Parties Borrower and the Subsidiaries may effect sales make Permitted Acquisitions and transfers (iv) any Subsidiary of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes Borrower may merge with another person in a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;transaction constituting an Asset Sale permitted hereunder.
(eb) Engage in any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash (other than in the Loan Parties case of a like-kind exchange or trade-in of one asset for another asset used or useful in the business of the Borrower and the Subsidiaries may sellits Subsidiaries), transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that than in the case of the sale of the Borrower’s corporate airplane (or a replacement thereof) or the sale of one or more parcels of real property in connection with the relocation of the operations of the Borrower or any transaction under clauses (c) and (d) aboveSubsidiary, and if the transaction has a fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are 20,000,000 in Pro Forma Compliance immediately after giving effect to such transactionany fiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Marathon Power Technologies Co), Credit Agreement (Transdigm 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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower, 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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (i1) any Loan Party or Wholly Owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii2) any Wholly Owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly Owned Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary and no Person other than a Loan Party the Borrower or a Wholly Owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (3) the Loan Parties Borrower and the Subsidiaries may effect sales make Permitted Acquisitions and transfers of assets and mergersother acquisitions expressly permitted under Section 6.04, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e4) the Loan Parties Borrower and the Subsidiaries may sellengage in any transaction(s) undertaken in good faith to improve the tax efficiency of the Borrower and its Affiliates so long as the Lenders are not adversely affected by such transactions (other than de minimis adverse effects) and (5) the Borrower may, in connection with an IPO, (x) enter into a transaction by which the Equity Interests in the Borrower are transferred to a parent entity that will own 100% of the Equity Interests of the Borrower or (y) the Equity Interests of the Borrower are directly or indirectly acquired (including by way of merger with a parent entity of the Borrower) by a Person described in clause (ii) of the definition of IPO, provided that (A) any such parent entity shall become a Loan Party by executing the Guarantee and Collateral Agreement and each applicable Security Document in favor of the Administrative Agent on or prior to the date the Equity Interests of the Borrower are so transferred or acquired, (B) such transfer or otherwise dispose acquisition of Equity Interests of the Borrower shall not constitute a Change in Control and (C) such parent entity shall not engage in any business activities or have any assets or property liabilities other than its ownership of the Equity Interests of the Borrower and liabilities incidental thereto.
(b) Make any Asset Sale otherwise permitted under clause (a) above unless (i) such Asset Sale is for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least 85% of which is cash, (ii) such consideration is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges this clause (b) shall not exceed (i) $20,000,000 in any fiscal year or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that (ii) $50,000,000 in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionaggregate.
Appears in 2 contracts
Samples: Credit Agreement (Oscar Health, Inc.), Credit Agreement (Oscar Health, 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower, except that:
(a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business;
(b) the Guarantors and the Subsidiaries may sell, transferpurchase, lease or otherwise dispose acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any assets other person, except that if at the time thereof and immediately after giving effect thereto no Event of Default or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (i) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party the Borrower or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (iii) the Loan Parties Borrower and the Subsidiaries may 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 make Permitted Reorganization Transactions;Acquisitions.
(eb) Engage in any other Asset Sale except:
(i) (A) any such Asset Sale the Loan Parties and the Subsidiaries may sellconsideration for which is at least 80% cash, transfer or otherwise dispose of any assets or property for cash or other (B) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or propertydisposed of, (C) the fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) (other than sales of Equity Interests by Foreign Subsidiaries to investors) shall not exceed in any fiscal year the sum of (I) $10,000,000 for each fiscal year (the amount of permitted Asset Sales in any fiscal year being referred to herein as the “Annual Limit”) plus (II) in each fiscal year, the excess, if any, of the Annual Limit for the preceding fiscal year over the amount of Asset Sales made by the Borrower and the Subsidiaries during the preceding fiscal year, (D) sales of Equity Interests by Foreign Subsidiaries to investors shall not exceed $10,000,000 in any fiscal year and (E) the aggregate amount of all Asset Sales made pursuant to this provision (other than pursuant to clause (D)) from the Restatement Date to the termination of this Agreement shall not exceed $25,000,000; and
(fii) sales by the Loan Parties and Borrower or the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges of brokerage offices, or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations transfers of the Borrower under this Agreement assets of brokerage offices and the other Loan Documents related assets, to which the Borrower is a party; provided that joint ventures in the case ordinary course of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionbusiness.
Appears in 2 contracts
Samples: Credit Agreement (Cbre Holding Inc), Credit Agreement (Cb Richard Ellis Group 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 liquidate or dissolve, or sell, transfer, lease lease, issue or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of any Loan Party or any of 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 (ai) the Guarantors purchase and sale by the Subsidiaries may sell assets Borrowers or properties any Subsidiary of inventory in the ordinary course of business;
, (bii) the Guarantors sale or discount by the Borrowers or any Subsidiary in each case without recourse and in the Subsidiaries may sellordinary course of business of overdue accounts receivable arising in the ordinary course of business, transfer, lease but only in connection with the compromise or otherwise dispose collection thereof consistent with customary industry practice (and not as part of any assets bulk sale or property in transactions only among financing transaction), and (iii) if at the Guarantors time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (x) the Subsidiaries;
(i) merger or consolidation of any Loan Party wholly owned Subsidiary into or Subsidiary may merge, consolidate or liquidate with or into a Loan Party Borrower in a transaction in which such Loan Party a Borrower is the surviving entity; provided that if corporation, (y) the Borrower merges, consolidates merger or liquidates consolidation of any wholly owned Subsidiary into or with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party Borrower or a wholly owned Subsidiary receives any consideration;.
(db) Engage in any Asset Sale other than (i) the Loan Parties sale of Specified Assets set forth on Schedule 5.14 and covered by Section 5.14 above and (ii) in addition to Asset Sales permitted under clause (i) above, the Subsidiaries may effect sales and transfers sale of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors set forth on Schedule 6.05(b) in aggregate amount for all such Asset Sales not to exceed $6,000,000 so long as (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(ex) the Loan Parties and cash consideration for each such Asset Sale is not less than 90% of the Subsidiaries may sellsale price of the asset being sold, transfer or otherwise dispose of any assets or property (y) the total consideration for cash or other each such Asset Sale is for consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair market value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) being sold and (dz) above, and if no Event of Default shall exist at the transaction has a value time of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionAsset Sale.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Maxxam Inc), Term Loan Agreement (Maxxam 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part substantially all of the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory, materials and equipment in the ordinary course of business;
business and may license Intellectual Property in the ordinary course of business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (iu) any Loan Party or Subsidiary may mergechange its form of organization in compliance with Section 5.6(a), consolidate or liquidate with or if applicable, (v) any Person may make investments and advances permitted by Section 6.4, (w) any wholly owned Subsidiary may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iix) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into 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 wholly owned Subsidiary or the De Minimis Holders receives any consideration (provided, that if any party to any such transaction is a Loan Party or Party, the surviving entity of such transaction shall be a Subsidiary receives any consideration;
Loan Party), (dy) the Loan Parties Borrower and the Subsidiaries may effect sales and transfers of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) make Permitted Acquisitions and the Subsidiaries HealthScribe Acquisition and (z) any Subsidiary of the Borrower may merge with another person in order to effect Permitted Reorganization Transactions;a transaction constituting an Asset Sale permitted hereunder.
(eb) Engage in any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash (other than in the Loan Parties case of a like-kind exchange or trade-in of one asset for another asset used or useful in the business of the Borrower and the Subsidiaries may sellits Subsidiaries), transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that than in the case of the sale of one or more parcels of real property in connection with the relocation of the operations of the Borrower or any transaction under clauses (c) and (d) aboveSubsidiary, and if the transaction has a fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are 20,000,000 in Pro Forma Compliance immediately after giving effect to such transactionany fiscal year.
Appears in 2 contracts
Samples: Credit Agreement (Spheris Operations Inc.), Credit Agreement (Spheris Leasing 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 itit (other than the Merger), or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of Polo Holdings or the Borrower or less than all the Equity Interests of any other 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:
that (ai) Polo Holdings, the Guarantors Borrower and the Subsidiaries any other Subsidiary may purchase and sell assets or properties Time Share Interests in the ordinary course of business;
business and (bii) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (w) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary Borrower may merge, consolidate liquidate, reorganize or liquidate with or otherwise be restructured into a Loan Party newly-formed Subsidiary in a transaction the purpose of which is to re-organize the Borrower as a limited liability company; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, Polo Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, the Borrower is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.12 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (x) any wholly owned Subsidiary may merge into the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations (y) any wholly owned Subsidiary of the Borrower under this Agreement and the may merge into or consolidate with any other Loan Documents to which wholly owned Subsidiary of the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary of the Borrower and no Person person other than a Loan Party the Borrower 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) and (z) the Borrower and the other Subsidiaries (other than Polo Holdings) may make Permitted Acquisitions.
(db) the Loan Parties and the Subsidiaries may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sellSell, transfer or otherwise dispose of any assets asset, including any Equity Interest owned by it, or property for cash issue or permit any Subsidiary to issue any additional Equity Interests in a Subsidiary (other consideration reasonably determined than directors’ qualifying shares), except:
(i) sales, transfers and dispositions by a Subsidiary to Polo Holdings, the Loan Parties Borrower or a Subsidiary Guarantor,
(ii) issuances by a Subsidiary of its Equity Interests to be any other Subsidiary in an amount at least equal to the fair value of such assets issuance permitted by Section 6.04(c), (iii) sales, transfers and dispositions between or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction.among Foreign Subsidiaries,
Appears in 2 contracts
Samples: First Lien Credit Agreement (Sunterra Corp), Second Lien Credit Agreement (Sunterra 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 any substantial part substantially all of the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of Terex and the Guarantors Restricted Subsidiaries (whether now owned or hereafter acquired)) or any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other person, except that:
(ai) the Guarantors any Borrower and the Subsidiaries any Restricted Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
(bii) (A) any Restricted Subsidiary may sell Program Receivables to Terex and (B) Terex and any Restricted Subsidiary may sell Program Receivables to Finsub pursuant to the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the SubsidiariesReceivables Program;
(iiii) 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 Loan Party or wholly owned Subsidiary (other than Finsub) may merge, consolidate or liquidate with or merge into a Loan Party Terex in a transaction in which such Loan Party Terex is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and corporation;
(iiB) any wholly owned Restricted Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Restricted Subsidiary and no Person person other than a Loan Party Terex 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 Subsidiary Guarantor, then the surviving entity shall be or become a Subsidiary Guarantor;
(dC) in connection with any Permitted Acquisition pursuant to Section 6.04(d), Terex 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 Loan Parties surviving entity is Terex or a wholly owned Subsidiary; provided that, (x) if Terex is a party to such merger or consolidation, Terex shall be the surviving corporation, and (y) if any wholly owned Restricted Subsidiary that is a Subsidiary Guarantor merges into or consolidates with any entity acquired pursuant to such Permitted Acquisition, then the Subsidiaries may effect sales and transfers of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes surviving entity shall be or become a Subsidiary Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(eD) Terex or any Subsidiary may transfer Equity Interests of, or assets of, a Domestic Subsidiary to Terex or to any wholly owned Domestic Subsidiary where no person other than Terex or a wholly owned Subsidiary receives any consideration; provided that, if (x) such Equity Interests or such assets being transferred are Equity Interests of, or assets of, a Subsidiary Guarantor, then the recipient thereof shall be or become a Subsidiary Guarantor, and (y) if the transferor of such Equity Interests or such assets is a Subsidiary Guarantor, then the recipient thereof shall be or become a Subsidiary Guarantor;
(E) Terex or any Subsidiary may transfer Equity Interests of a Foreign Subsidiary (other than a Material First Tier Foreign Subsidiary) to any other Foreign Subsidiary where no person other than Terex or a wholly owned Restricted Subsidiary receives any consideration; and
(F) Terex or any Subsidiary may transfer Equity Interests of, or assets of, a Material First Tier Foreign Subsidiary to any other Material First Tier Foreign Subsidiary where no person other than Terex or a wholly owned Subsidiary receives any consideration, provided that in the case of a transfer of Equity Interests, such transfer is subject to the pledge of the 65% of the voting Equity Interests thereof to the Collateral Agent; and
(iv) Bidco may consummate the Acquisition; provided, however, that any merger, consolidation or transfer of assets by or between Terex or a Restricted Subsidiary, on the one hand, and an Unrestricted Subsidiary, on the other hand, shall be subject to the limitation set forth in Section 6.04(l).
(b) Engage in any Asset Sale not otherwise prohibited by Section 6.05(a) unless all of the following conditions are met: (i) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount received is at least equal to the fair market value of such assets or propertyassets; and
(fii) at least 75% of the consideration received is cash; (iii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitionsNet Cash Proceeds of such Asset Sale are applied as required by Section 2.13(b); provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (div) above, and if the transaction has a value no Default or Event of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to Default shall result from such transactionAsset Sale.
Appears in 2 contracts
Samples: Credit Agreement (Terex Corp), Credit 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary (other than pursuant to any Permitted Interest Transfer 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 purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other person, except that:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (ix) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any Subsidiary may merge, merge into or consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than (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 and (B) to the extent any person other than the Borrower or a wholly owned Subsidiary receives any consideration;
consideration in connection therewith, then such transaction shall be considered as an investment under the applicable paragraph of Section 6.04) and (dz) the Loan Parties Borrower and the Subsidiaries may effect sales make Permitted Acquisitions or any other investment, loan or advance permitted pursuant to Section 6.04, 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 may enter into Permitted Reorganization Transactions;Joint Ventures.
(eb) the Loan Parties and the Subsidiaries may sell, transfer or Make any Asset Sale otherwise dispose of any assets or property permitted under paragraph (a) above unless such Asset Sale is:
(i) for cash or other consideration reasonably determined by the Loan Parties to be in an amount that is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of; provided that (x) for any disposition of assets with a fair market value of more than $50,000,000, at least 75% of such consideration is cash and (y) the fair market value of all assets sold, transferred, leased or propertydisposed of pursuant to this clause (b)(i) shall not exceed $300,000,000 in any fiscal year; andprovided further that, prior to the Incremental Asset Sale Termination Date, such annual amount shall be increased by an aggregate amount not to exceed $750,000,000;
(fii) a Receivables Transaction, provided that (x) the Loan Parties material terms and conditions and the structure of such Receivables Transaction have been approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed), (y) any Liens granted in connection with such Receivables Transaction shall comply with the terms of Section 6.02(p) and (z) the aggregate Receivables Transaction Amount outstanding at any time in respect of all Receivables Transactions does not exceed $1,500,000,000 (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 Syndications on or after the Closing 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 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 enter into mergers and consolidations abandon, allow to effect asset acquisitions; provided lapse or otherwise dispose of intangible property that if the Borrower merges or consolidates with any other Person and if such Subsidiary shall determine in its reasonable business judgment is immaterial to the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations conduct of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case its business;
(vii) forgiveness of any transaction under clauses loans or advances made pursuant to Section 6.04(e);
(cviii) transfers of property subject to casualty or a condemnation proceeding;
(ix) Restricted Payments permitted pursuant to Section 6.06; or
(x) for the sale or other disposition of real estate and related assets (dother than Hospitals and Receivables) abovefor the fair market value thereof in cash, and if the transaction has a value of in an aggregate amount not to exceed $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction300,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Community Health Systems Inc), 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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
, (bii) the Guarantors Holdings and the its Subsidiaries may sellpermit to occur any casualty or condemnation event and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(iA) any Loan Party or Wholly Owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiB) any Wholly Owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly Owned Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary and no Person other than a Loan Party the Borrower or a Wholly Owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) and Subsidiary that is not a Wholly Owned Subsidiary may merge into any Wholly Owned Subsidiary or into any other Subsidiary that is not a Wholly Owned Subsidiary, (D) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not disadvantageous to the Lenders, and (E) the Loan Parties Borrower and the Subsidiaries may 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 make Permitted Reorganization Transactions;Acquisitions.
(eb) the Loan Parties and the Subsidiaries may sellMake any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair aggregate book value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed (x) in the case of sale and the Subsidiaries may enter into mergers leaseback transactions, $5,000,000 and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that (y) in the case of any transaction under clauses other Asset Sale, $40,000,000 in the aggregate; provided that the foregoing limitations on the aggregate book value of assets sold, transferred, leased or disposed shall not apply to (cI) the Anticipated Tower Lease-Back, (II) sales, transfers and other dispositions of the Specified Facilities and (dIII) abovesales, transfers and if other dispositions of assets related to the transaction has a value implementation of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionCentral Office Consolidation.
Appears in 2 contracts
Samples: Credit Agreement (Hawaiian Telcom Holdco, Inc.), Credit Agreement (Hawaiian Telcom Holdco, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge Enter into any transaction of merger or consolidate with consolidation or liquidate, wind-up or dissolve itself (or suffer any other Personliquidation or dissolution), or permit any other Person to merge into or consolidate with itconvey, or sell, transferlease or sub-lease (as lessor or sublessor), lease license or sub-license (as licensor or sub-licensor), exchange, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its business, assets or property of any kind whatsoever, including the consolidated assets (including by way Equity Interests of a sale Subsidiary, whether real, personal or transfer of stock of Subsidiaries) of the Guarantors mixed and whether tangible or intangible (whether now owned or hereafter acquired)) 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 thatfor:
(a) the Guarantors sale by Tensar and the its Subsidiaries may sell assets or properties of inventory in the ordinary course of business;
(b) the Guarantors sale or discount by Tensar or any of its Subsidiaries in each case without recourse and in the Subsidiaries may sellordinary course of business of overdue accounts receivable arising in the ordinary course of business, transferbut only in connection with the compromise or collection thereof Schedule 4, lease or otherwise dispose Negative Covenants consistent with customary industry practice (and not as part of any assets bulk sale or property in transactions only among the Guarantors and the Subsidiariesfinancing transaction);
(ic) the disposition of obsolete or worn out assets, scrap and Permitted Investments in the ordinary course of business;
(d) the NAG Sale-Leaseback provided that the proceeds of such sale are used to pay in full the purchase price for the NAG Facility;
(e) the sale of assets on the Effective Date under the Asset Purchase Agreement;
(f) the purchase and sale of commodities by Tensar Holdings under this Agreement;
(g) the purchase and sale of commodities by Tensar pursuant to the Second Lien Commodities Purchase Agreement and the Commodities Purchase Facility Agreement; and
(h) 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 merger or consolidation of any Loan Party wholly owned Subsidiary into or Subsidiary may merge, consolidate or liquidate with or into a Loan Party Tensar in a transaction in which such Loan Party Tensar is the surviving entity; provided that if corporation, (x) the Borrower merges, consolidates merger or liquidates consolidation of any wholly owned Subsidiary into or with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party Tensar or a wholly owned Subsidiary receives any consideration;
, (dprovided that if any party to any such transaction is (A) a Tensar Party, the surviving entity of such transaction shall be a Tensar Party and (B) a Domestic Subsidiary, the surviving entity of such transaction shall be a Domestic Subsidiary), (y) Permitted Acquisitions by Tensar or any of its Subsidiaries (otherwise permitted by Section 1.04(h) of this Schedule 4), and (z) the Loan Parties and the Subsidiaries may effect sales and transfers of assets and mergerssale, consolidationslease, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sellsub-lease, transfer license, sub-license or otherwise dispose other disposition of any part of its business, assets or property (except any Equity Interests of Tensar) so long as (i) such Asset Sale is for consideration at least 80% of which is cash or other (and no portion of the remaining consideration reasonably determined by the Loan Parties to shall be in an amount the form of Financing Obligations of Tensar Holdings or any of its Subsidiaries), (ii) such consideration is at least equal to the fair market value of such the assets being sold, transferred, leased, licensed or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased, licensed or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is this clause (z) shall not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that exceed $40,000,000 in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionaggregate.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge (a) In the case of PGH and the Borrower, (i) merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or sell, convey, transfer, lease lease, liquidate or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all the assets of any substantial part Loan Party, or assign any of its respective Obligations under the consolidated Loan Documents to any other person; or (ii) permit PALLC, Powercoal, PA or Services to sell, transfer, lease, liquidate or otherwise dispose of, directly or indirectly, (by merger or otherwise) all or substantially all their respective assets (including by way to any person other than a Loan Party or a wholly owned subsidiary of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)Loan Party, except thatin each case except:
(aA) the Guarantors PGH and the Subsidiaries any subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
(bB) if at the Guarantors time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, any wholly owned subsidiary of PGH (other than the Subsidiaries Borrower) may merge into or consolidate with or sell, convey, transfer, lease lease, liquidate or otherwise dispose of all its assets to PGH or the Borrower or any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party other wholly owned subsidiary in a transaction in which such Loan Party is the surviving entity; provided that if no person other than PGH, the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary wholly owned subsidiary of PGH receives any consideration;
(dC) PGH or any of its subsidiaries may effect the Loan Parties PPM Contribution, the TPC Contribution, the Citizens Transfer, the Peabody Transfer, the Xxx Ranch Transfer and the Subsidiaries may 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 Reorganization Interco Transactions;
(eD) the Loan Parties and the Subsidiaries PGH may sell, transfer or otherwise dispose of all the capital stock of PFS or the Spring Creek Note so long as (I) at the time thereof and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing and (II) PGH complies with Section 2.13 with respect to the Net Cash Proceeds received from any assets or property for cash such sale, transfer or other disposition;
(E) acquisitions constituting investments permitted by Section 6.04; and
(F) PGH may sell, transfer or otherwise dispose of the Excluded Assets to PacifiCorp or any subsidiary of PacifiCorp.
(b) Notwithstanding Section 6.05(a), no Asset Sale by PGH or the Borrower shall be permitted under this Agreement unless (i) the consideration reasonably determined by the Loan Parties to be received in an amount connection therewith shall be at least equal to the fair market value of such the assets or property; and
property sold, transferred or otherwise disposed of (f) as determined in good faith by the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges board of directors of PGH or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, as the case may be), (ii) such Person Asset Sale shall expressly assume all be for consideration at least 80% of which is cash (except to the obligations extent that the purchase price or payment thereof is contingent on performance of the Borrower assets or property sold) and (iii) to the extent required, the Net Cash Proceeds therefrom are applied in accordance with Section 2.13(b).
(c) Notwithstanding Section 6.05(a), no Asset Sale by any of Powercoal, PA, PALLC, Eastern or any of their respective subsidiaries shall be permitted under this Agreement unless (i) such Asset Sale is permitted or not prohibited by the terms of the relevant Credit Facility, and the other Loan Documents to which the Borrower is a party; provided that (ii) in each case, any Net Cash Proceeds received by such person as consideration in connection with such Asset Sale are retained or applied (A) in the case manner required by, permitted under or not otherwise prohibited by the relevant Credit Facility or (B) to prepay Loans in accordance with Section 2.13 of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionthis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Pacificorp /Or/)
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) or 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:
(a) the Guarantors Parent, any Borrower or any Subsidiary Loan Party may purchase and the Subsidiaries may sell assets or properties inventory, fixtures and equipment in the ordinary course of business;
(b) the Guarantors and the Subsidiaries Parent, any Borrower or any Subsidiary Loan Party may sell, transfer, lease sell or otherwise dispose of obsolete or worn out property, in each case in the ordinary course of business and consistent with past practice, provided that the aggregate Fair Market Value of all such assets disposed of pursuant to this clause (b) in any assets or property in transactions only among the Guarantors and the Subsidiariesfiscal year shall not exceed $5,000,000;
(ic) Parent, any Borrower or any Subsidiary Loan Party may exchange real property, fixtures and improvements for other real property, fixtures and improvements, provided that any consideration (other than real property, fixtures and improvements) received by any Loan Party or Subsidiary may merge, consolidate or liquidate in connection with or into a such exchanges is received by such Loan Party in a transaction in which such Loan Party is the surviving entitycash; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration;[[NYCORP:2303151v20:4272D:09/26/03--12:23 p]]
(d) the Loan Parties and the Subsidiaries may effect sales and transfers of assets and mergerssubject to Section 6.15, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries Subsidiary may sell, transfer or otherwise dispose of any of its assets or property for cash to any Subsidiary Loan Party;
(e) dispositions of the Excluded Properties or other dispositions of all or any portion of the assets constituting the restaurants of Denny's Holdings and its subsidiaries (other than sales, but not licenses, of Trademarks (as defined in the Amended and Restated Guarantee and Collateral Agreement)), in each case for consideration reasonably determined by the Loan Parties senior management of Parent to be in an amount at least equal to the fair value Fair Market Value of the assets disposed of, provided that the aggregate Fair Market Value of the assets (other than Excluded Properties) disposed of pursuant to this subsection shall not exceed $10,000,000 in any fiscal year;
(f) Parent, any Borrower or any Subsidiary Loan Party may sell, transfer or otherwise dispose of underperforming restaurants (as determined in the good faith judgment of Parent) for consideration determined by the board of directors of the person that owns such restaurants (which board of directors shall include members of senior management of Parent) to be equal to the Fair Market Value of the restaurants sold, transferred or otherwise disposed of, provided that the aggregate Fair Market Value of all assets disposed of pursuant to this clause (f) shall not exceed $5,000,000 in any fiscal year;
(g) any Subsidiary Loan Party (other than a First-Tier Subsidiary) may merge or consolidate with or transfer all or substantially all of its assets to any other Subsidiary Loan Party;
(h) Denny's or any of its subsidiaries may (i) sell or transfer the rights to operate restaurants under the Denny's name as franchisees (but not the restaurant buildings themselves (the "Retained Denny's Restaurants") or the land on which such restaurants are located (the "Retained Denny's Land")) to franchisees of Denny's (the "Denny's Franchisees") generally in accordance with Parent's October 2002 Business Plan for cash consideration equal to the Fair Market Value of such assets rights and (ii) may lease or propertysublease the Retained Denny's Restaurants and the Retained Denny's Land to the Denny's Franchisees that operate such Retained Denny's Restaurants pursuant to operating leases or subleases on terms determined in good faith by Denny's or the applicable Subsidiary to be market terms at the time such leases or subleases are entered into, provided that (i) such Retained Denny's Restaurants continue to be operated by such Denny's Franchisees under the Denny's name for so long as Parent's senior management reasonably believes such continued operation is in the best interest of Parent and (ii) such sales, and such leases or subleases, do not violate, conflict with, result in the breach of or constitute a default under any provision of, or give rise to any right to terminate, any indenture, agreement or other instrument to which Parent, any Borrower or any Subsidiary is a party;
(i) Borrower may sell, transfer or otherwise dispose of Properties Held for Sale to an unaffiliated third party; and
(fj) the any Borrower or any Subsidiary Loan Parties and the Subsidiaries Party other than a First-Tier Subsidiary may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses permitted by Section 6.04(j); [[NYCORP:2303151v20:4272D:09/26/03--12:23 p]] 71 provided, however, that any sale, transfer, exchange or other disposition of assets (x) permitted by clause (b), (c) and (d) above), and if the transaction has a value of $25,000,000 or more, clauses (e) or (i) above shall not be permitted unless such disposition is for Fair Market Value and (y) for gross consideration in excess of (A) $100,000 for any individual sale, transfer, exchange or other disposition and (B) $500,000 for all such sales, transfers, exchanges or other dispositions permitted by clause (b), (e), (f) aboveor (i) shall not be permitted unless such disposition is for at least 60% cash consideration and all noncash consideration received in respect thereof shall be in the form of a note, an asset or such other form as shall be reasonably satisfactory to the Loan Parties are in Pro Forma Compliance Administrative Agent; and provided further that any transaction permitted by clause (c), (e), (f) or (g) above shall not be permitted unless at the time thereof and immediately after giving effect to such transactionthereto no Event of Default or Default shall have occurred and be continuing.
Appears in 1 contract
Samples: Credit Agreement (Dennys Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired), or 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 or any division, unit or business of any other person, except that:that this Section 7.057.05 shall not prohibit the following (collectively, “Permitted Dispositions”):
(a) (i) the Guarantors purchase and sale of inventory in the ordinary course of 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 shall have occurred and be continuing or would result therefrom, (i) the merger, consolidation or amalgamation of any Subsidiary into (or with) Borrower Holdco or the Lead Borrower in a transaction in which Borrower Holdco or the Lead Borrower, as applicable, is the survivor, (ii) the merger, consolidation or amalgamation of any Subsidiary into or with any Subsidiary of Borrower Holdco that is a Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary of Borrower Holdco that is a Loan Party and, in the case of each of clauses (i) and (ii), no person other than Borrower Holdco, the Lead Borrower or another Loan Party receives any consideration, (iii) the merger, consolidation or amalgamation of any Subsidiary that is not a Loan Party into or with any other Subsidiary that is not a Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Excluded Subsidiary if the Lead Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Lead Borrower and is not materially disadvantageous to the Lenders or (v) the merger, consolidation or amalgamation of any Subsidiary of Borrower Holdco (other than the Lead Borrower) with or into any other person in order to effect an Investment permitted under Section 7.047.04 so long as the continuing or surviving person shall be a Subsidiary of Borrower Holdco that is a Loan 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 6.016.01;
(c) sales, transfers, leases or other Dispositions to Borrower Holdco or any of its Subsidiaries may sell assets (upon voluntary liquidation or properties otherwise);
(d) dispositions by the Borrowers to CIT of Accounts of the Borrowers, in accordance with the terms and conditions of the CIT Deferred Purchase Factoring Agreement;
(e) Investments permitted by Section 7.047.04, Permitted Encumbrances and Restricted Payments permitted by Section 7.067.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) Permitted Business Acquisitions;
(h) leases, nonexclusive licenses, or nonexclusive subleases or sublicenses of any real or personal property in the ordinary course of business;
(bi) Dispositions that satisfy both of the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
following requirements: (i) any such Loan Party or such Subsidiary may mergereceives consideration (including by way of relief from, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into by any other Subsidiary in a transaction in which Person assuming responsibility for, any liabilities, contingent or otherwise) at the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration;
(d) the Loan Parties and the Subsidiaries may effect sales and transfers time 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount such Disposition at least equal to the fair market value of the shares and assets subject to such assets or property; and
Disposition, as such fair market value (fon the date a legally binding commitment for such Disposition was entered into) may be determined in good faith by the Loan Parties Lead Borrower and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that (ii) in the case of any transaction under clauses Disposition (cor series of related Dispositions) and having a fair market value (don the date a legally binding commitment for such Disposition was entered into) above, and if the transaction has a value in excess of $25,000,000 25the greater of $50,000,000 or moremoreand 2.2% of the Consolidated Total Assets, clauses at least 75.00% of the consideration therefor (eexcluding, in the case of a Disposition (or series of related Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) and received by such Loan Party or such Subsidiary is in the form of cash; provided that if (fx) abovemore than five percent (5%) of assets of the type which may be included in the Borrowing Base (regardless of eligibility) are Disposed of pursuant to a single transaction or a series of related transactions under this Section 7.05(i),7.05(i), the Loan Parties are in Pro Forma Compliance immediately Borrowers shall deliver an updated Borrowing Base Certificate to the Agent, prepared on a pro forma basis after giving effect to such transactionDisposition and/or (y) more than ten percent (10%) of assets of the type which may be included in the Borrowing Base (regardless of eligibility) are Disposed of pursuant to a single transaction or a series of related transactions under this Section 7.05(i),7.05(i), the Agent shall have the ability to conduct an updated appraisal of the assets included on the Borrowing Base at the expense of the Loan Parties (but which appraisal shall not, for the avoidance of doubt, be counted as one of the appraisals performed pursuant to Section 6.076.07 hereof for purposes of determining reimbursement of the costs and expenses thereof by the Loan Parties);
(j) bulk sales or other Dispositions of the Inventory of a Loan Party not in the ordinary course of business in connection with Store closings, at arm’s length; provided, that such Store closures and related Inventory Dispositions shall not exceed (i) in any Fiscal Year of the Parent and its Subsidiaries, 5% of the number of the Loan Parties’ Stores as of the beginning of such Fiscal Year (net of new Store openings) and (ii) in the aggregate from and after the Closing Date, 10% of the number of the Loan Parties’ Stores in existence as of the Closing Date (net of new Store openingsif (x) more than five percent (5%) of assets of the type which may be included in the Borrowing Base (regardless of eligibility) are Disposed of pursuant to a single transaction or a series of related transactions under this Section 7.05(j), the Borrowers shall deliver an updated Borrowing Base Certificate to the Agent, prepared on a pro forma basis after giving effect to such Disposition and/or (y) more than ten percent (10%) of assets of the type which may be included in the Borrowing Base (regardless of eligibility) are Disposed of pursuant to a single transaction or a series of related transactions under this Section 7.05(j), the Agent shall have the ability to conduct an updated appraisal of the assets included on the Borrowing Base at the expense of the Loan Parties (but which appraisal shall not, for the avoidance of doubt, be counted as one of the appraisals performed pursuant to Section 6.07 hereof for purposes of determining reimbursement of the costs and expenses thereof by the Loan Parties); provided, further that all sales of Inventory in connection with Store closings shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Agent;
(k) any other Permitted Asset Dispositions; and
(l) the creation or granting of any Lien permitted under this Agreement.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired), except thator issue, sell, transfer or otherwise dispose of any Equity Interests of Holdings 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 or any division or business unit of any other person; provided that this Section 6.05 shall not prohibit:
(a) any Asset Sale in which (i) a Loan Party or any of its Subsidiaries, as the Guarantors case may be, receives consideration at the time of the Asset Sale of at least equal to the Fair Market Value (as determined in good faith by the Loan Parties) of the assets sold or otherwise disposed of, and (ii) at least 75% of the consideration therefor received by such Loan Party or such Subsidiary, as the case may be, is in the form of Unrestricted Cash or Permitted Investments; provided that (x) the aggregate amount of consideration received by Holdings and the Subsidiaries may sell assets for Asset Sales pursuant to this Section 6.05(a) shall not exceed $30,000,000 in any fiscal year and (y) all Net Cash Proceeds thereof in excess of $5,000,000 in any fiscal year shall be applied for prepayment of the Loan in accordance with Section 2.11(a);
(i) the purchase and sale of inventory in the ordinary course of business by any Subsidiary, (ii) the acquisition or properties lease (pursuant to an operating lease) of any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete, damaged 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;
(bc) if at the Guarantors time thereof and the Subsidiaries may sellimmediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) the merger, consolidation or amalgamation of any Loan Party Subsidiary of a Borrower into or with such Borrower in a transaction in which a Borrower is the survivor, (ii) the merger, consolidation or amalgamation of any Subsidiary may merge, consolidate into or liquidate with or into any Subsidiary that is a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into resulting entity is a Loan Party and, in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations case of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party each of clauses (i) and (ii), no person other than a Loan Party receives any consideration, (iii) the merger, consolidation or amalgamation of any Subsidiary that is not a Loan Party into or with any other Subsidiary that is not a Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Borrowers determine 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 or (v) any Subsidiary may merge, consolidate or liquidate amalgamate into or with or into any other Subsidiary person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a transaction in Subsidiary, which the surviving entity is a Subsidiary and no Person other than shall be a Loan Party if the merging, consolidating or amalgamating Subsidiary was a Subsidiary receives any considerationLoan Party and which together with each of the Subsidiaries shall have complied with the requirements of Section 5.10;
(d) sales, transfers, leases or other dispositions to 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 Loan Party in reliance on this paragraph (c) shall be made in compliance with Section 6.07;
(e) [reserved];
(f) Sale and Lease Back Transactions permitted by Section 6.03;
(g) Investments permitted by Section 6.04, Permitted Liens and Restricted Payments permitted by Section 6.06;
(h) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(i) sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this Section 6.05(i) pursuant to Section 6.05(c)); provided, that (i) the aggregate gross proceeds (including noncash proceeds) of any or all assets, sold, transferred, leased or otherwise disposed of in reliance under this Section 6.05(i) shall not exceed, in any fiscal year of the Borrowers, when combined with the total amount of gross proceeds of any asset sales made pursuant to Section 6.05(i) of the ABL Credit Agreement since the Closing Date, $10,000,000 and (ii) no Default or Event of Default exists or would result therefrom;
(j) 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 Loan Party, a Loan Party is the surviving corporation and (ii) involving a Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(k) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(l) sales, leases or other dispositions of inventory of the Loan Parties and the Subsidiaries may effect sales and transfers determined by the management of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors (including Loan Parties to be no longer useful or necessary in the operation of the business of the Loan Parties or any Eligible Additional Guarantor that becomes a Guarantor) and of the Subsidiaries in order to effect Permitted Reorganization TransactionsSubsidiaries;
(em) [reserved];
(n) [reserved];
(o) [reserved]; 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 Loan Parties and the Subsidiaries may sellSubsidiaries) 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), transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value made as part of such assets acquisition and in each case comprising all or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations a portion of the Borrower under this Agreement and consideration in respect of such sale or acquisition; provided, that the other Loan Documents to which the Borrower is a party; provided that net investment in the case Equity Interests of any transaction under clauses (c) and (d) above, and the Subsidiary would be permitted by Section 6.04 if made on the transaction has a value date of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactiondisposition.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) or 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:
(a) the Guarantors Parent, any Borrower or any Subsidiary Loan Party may purchase and the Subsidiaries may sell assets or properties inventory, fixtures and equipment in the ordinary course of businessbusiness consistent with past practices;
(b) the Guarantors and the Subsidiaries Parent, any Borrower or any Subsidiary Loan Party may sell, transfer, lease sell or otherwise dispose of damaged, obsolete or worn out property, in each case in the ordinary course of business and consistent with past practice, provided that the aggregate Fair Market Value of all such assets disposed of pursuant to this clause (b) in any assets or property in transactions only among the Guarantors and the Subsidiariesfiscal year shall not exceed $5,000,000;
(ic) Parent, any Borrower or any Subsidiary Loan Party may exchange real property, fixtures and improvements for other real property, fixtures and improvements, provided that any consideration (other than real property, fixtures and improvements) received by any Loan Party or Subsidiary may merge, consolidate or liquidate in connection with or into a such exchanges is received by such Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any considerationcash;
(d) the Loan Parties and the Subsidiaries may effect sales and transfers of assets and mergerssubject to Section 6.14, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries Subsidiary may sell, transfer or otherwise dispose of any of its assets to any Subsidiary Loan Party;
(e) any Borrower or any Subsidiary Loan Party may sell, transfer, sell a franchise in or otherwise dispose of restaurants or property (including real property, improvements, fixtures and equipment) relating to current or former restaurants of such person (such restaurants and property are collectively referred to as “Restaurant Businesses”) for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value Fair Market Value of such the Restaurant Businesses sold, transferred or otherwise disposed of, provided that the aggregate Fair Market Value of all assets or property; anddisposed of pursuant to this clause (e) shall not exceed $25,000,000 in any fiscal year;
(f) the any Subsidiary Loan Parties and the Subsidiaries Party (other than a First-Tier Subsidiary) may merge or consolidate with or transfer all or substantially all of its assets to any other Subsidiary Loan Party (other than a First-Tier Subsidiary);
(g) any Borrower or any Subsidiary Loan Party may enter into mergers a Refranchising Asset Sale;
(h) Parent, any Borrower or any Subsidiary Loan Party may purchase, lease or otherwise acquire (in one transaction or a series of transactions) the assets of any other person in connection with its application or reinvestment of Net Cash Proceeds from any Reduction Event to the extent that such Reduction Event or the application or reinvestment of such proceeds does not result in a mandatory prepayment pursuant to Section 2.07(b);
(i) in addition to any other purchases permitted under this Section 6.05, Parent, any Borrower or any Subsidiary Loan Party may purchase tangible assets useful in the conduct of restaurant operations and consolidations other business currently conducted by it and business activities reasonably incidental thereto with a Fair Market Value of up to $ 5,000,000 during any 12 month period following the Closing Date;
(i) any Borrower or any Subsidiary Loan Party (other than a First-Tier Subsidiary) may effect asset acquisitionsany transaction permitted by Section 6.04(h), (ii) the Parent, any Borrower or any Subsidiary may enter into sale-leaseback transactions permitted by Section 6.03, (iii) Parent and Denny’s Holdings may enter into transactions permitted by Section 6.08(a)(ii) and (iv) the Parent, any Borrower or any Subsidiary Loan Party may enter into transactions permitted by Section 6.08(a)(iv);
(k) Parent, any Borrower or any Subsidiary Loan Party may sell the Specified Properties; provided that 100% of the Net Cash Proceeds of each sale of any of the Specified Properties shall be used to prepay Term Loans and, if applicable, to prepay Revolving Loans and cash collateralize Letters of Credit as if such sale was a Reduction Event described in clause (a) of the Borrower merges or consolidates with any other Person and if definition of the Person formed by or surviving term “Reduction Event”, except that any such merger prepayment and, if applicable, cash collateralization shall occur on or consolidation is not before the Borrower, such Person shall expressly assume all the obligations fifth Business Day of the Borrower under month following the month in which such sale occurs; provided further that, notwithstanding anything in this Agreement to the contrary, (i) none of the Net Cash Proceeds of any sale of any of the Specified Properties shall be used to acquire Reinvestment Assets and (ii) Parent shall deliver to the Administrative Agent a certificate of a Financial Officer promptly following receipt of any Net Cash Proceeds (and in any event no later than the fifth Business Day of the month following the month in which such Net Cash Proceeds were received) of a sale of any of the Specified Properties setting forth a reasonably detailed calculation of the amount of such Net Cash Proceeds; provided, however, that any sale, transfer, exchange or other Loan Documents to which the Borrower disposition of assets (x) permitted by clause (b), (c), (e), or (k) above shall not be permitted unless such disposition is a partyfor Fair Market Value and (y) shall be for at least 60% cash consideration; provided that in the case of any transaction under clauses dispositions permitted by clause (ck) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to shall not be permitted unless such transactiondisposition is for at least 90% cash consideration.
Appears in 1 contract
Samples: Credit Agreement (Dennys Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) or 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:
(a) the Guarantors any Borrower or any other Subsidiary may purchase and the Subsidiaries may sell assets or properties inventory, fixtures and equipment in the ordinary course of business;
(b) the Guarantors and the Subsidiaries any Borrower or any other Subsidiary may sell, transfer, lease sell or otherwise dispose of obsolete or worn out property, in each case in the ordinary course of business and consistent with past practice, PROVIDED that the aggregate Fair Market Value of all such assets disposed of pursuant to this clause (b) in any assets or property in transactions only among the Guarantors and the Subsidiariesfiscal year shall not exceed $1,000,000;
(ic) any Borrower or any other Subsidiary may exchange real property, fixtures and improvements for other real property, fixtures and improvements, PROVIDED that any consideration (other than real property, fixtures and improvements) received by any Loan Party or Subsidiary may merge, consolidate or liquidate in connection with or into a such exchanges is received by such Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any considerationcash;
(d) the Loan Parties and the Subsidiaries may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries Borrower or any other Subsidiary may sell, transfer or otherwise dispose of any of its assets to any Subsidiary Guarantor;
(e) any Borrower or property for cash or any other consideration reasonably determined Subsidiary may consummate the dispositions of restaurant assets as generally contemplated by the Loan Parties to be in an amount at least Confidential Information Memorandum for a consideration equal to the fair value Fair Market Value of the assets sold, transferred or otherwise disposed of, PROVIDED that the aggregate Fair Market Value of all dispositions consummated pursuant to this clause (e) shall not exceed $7,500,000;
(f) any Subsidiary Guarantor may (i) merge or consolidate with or transfer all or substantially all of its assets to any other Subsidiary Guarantor and (ii) acquire by merger the assets of any person to the extent permitted by Section 6.04(j), PROVIDED that no such merger, consolidation, transfer or acquisition involving a Subsidiary Guarantor results in any loss of ownership by FRD of such assets or propertySubsidiary Guarantor; and
(fg) the Loan Parties and the Subsidiaries FRD, any Borrower or any other Subsidiary may enter into mergers and consolidations effect any investment, loan or advance that it is expressly permitted to effect asset acquisitionsunder Section 6.04; provided PROVIDED, HOWEVER, that if the Borrower merges any sale, transfer, exchange or consolidates with any other Person and if the Person formed disposition of assets permitted by clauses (b), or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) above shall not be permitted unless such disposition is for Fair Market Value; and PROVIDED FURTHER that any transaction permitted by clause (d) abovec), and if the transaction has a value of $25,000,000 or more, clauses (e) and or (f) above, above shall not be permitted unless at the Loan Parties are in Pro Forma Compliance time thereof and immediately after giving effect to such transactionthereto no Event of Default or Default shall have occurred and be continuing.
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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower and the Subsidiaries, taken as a whole, 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 substantially all of the assets of any other Person, except that:
(a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business;
(b) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate liquidate or liquidate with dissolve 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; and
(ii) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) any Wholly Owned Subsidiary may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any Wholly Owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly Owned Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary and no Person other than a Loan Party the Borrower or a Wholly Owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (z) the Loan Parties Borrower and the Subsidiaries may effect sales and transfers of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors make Permitted Acquisitions (including by way of merger or consolidation, so long as any Eligible Additional Guarantor that becomes a Guarantor) and Loan Party party thereto shall be the Subsidiaries in order to effect Permitted Reorganization Transactions;surviving entity).
(eb) the Loan Parties and the Subsidiaries may sellMake any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are 50,000,000 in Pro Forma Compliance immediately after giving effect to such transactionany fiscal year.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) or 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:
(a) the Guarantors Parent, any Borrower or any Subsidiary Loan Party may purchase and the Subsidiaries may sell assets or properties inventory, fixtures and equipment in the ordinary course of business;
(b) the Guarantors and the Subsidiaries Parent, any Borrower or any Subsidiary Loan Party may sell, transfer, lease sell or otherwise dispose of obsolete or worn out property, in each case in the ordinary course of business and consistent with past practice, provided that the aggregate Fair Market Value of all such assets disposed of pursuant to this clause (b) in any assets or property in transactions only among the Guarantors and the Subsidiariesfiscal year shall not exceed $5,000,000;
(ic) Parent, any Borrower or any Subsidiary Loan Party may exchange real property, fixtures and improvements for other real property, fixtures and improvements, provided that any consideration (other than real property, fixtures and improvements) received by any Loan Party or Subsidiary may merge, consolidate or liquidate in connection with or into a such exchanges is received by such Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any considerationcash;
(d) the Loan Parties and the Subsidiaries may effect sales and transfers of assets and mergerssubject to Section 6.15, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries Subsidiary may sell, transfer or otherwise dispose of any of its assets or property for cash to any Subsidiary Loan Party;
(e) dispositions of the Excluded Properties or other dispositions of all or any portion of the assets constituting the restaurants of Denny's Holdings and its subsidiaries (other than sales, but not licenses, of Trademarks (as defined in the Guarantee and Collateral Agreement)), in each case for consideration reasonably determined by the Loan Parties senior management of Parent to be in an amount at least equal to the fair value Fair Market Value of the assets disposed of, provided that the aggregate Fair Market Value of the assets (other than Excluded Properties) disposed of pursuant to this subsection shall not exceed $10,000,000 in any fiscal year;
(f) Parent, any Borrower or any Subsidiary Loan Party may sell, transfer or otherwise dispose of underperforming restaurants (as determined in the good faith judgment of Parent) for consideration determined by the board of directors of the person that owns such restaurants (which board of directors shall include members of senior management of Parent) to be equal to the Fair Market Value of the restaurants sold, transferred or otherwise disposed of, provided that the aggregate Fair Market Value of all assets disposed of pursuant to this clause (f) shall not exceed $5,000,000 in any fiscal year;
(g) any Subsidiary Loan Party (other than a First-Tier Subsidiary) may (i) merge or consolidate with or transfer all or substantially all of its assets to any other Subsidiary Loan Party;
(h) Denny's or any of its subsidiaries may (i) sell or transfer the rights to operate restaurants under the Denny's name as franchisees (but not the restaurant buildings themselves (the "Retained Denny's Restaurants") or the land on which such restaurants are located (the "Retained Denny's Land")) to franchisees of Denny's (the "Denny's Franchisees") generally in accordance with Parent's October 2002 Business Plan for cash consideration equal to the Fair Market Value of such assets rights and (ii) may lease or propertysublease the Retained Denny's Restaurants and the Retained Denny's Land to the Denny's Franchisees that operate such Retained Denny's Restaurants pursuant to operating leases or subleases on terms determined in good faith by Denny's or the applicable Subsidiary to be market terms at the time such leases or subleases are entered into, provided that (i) such Retained Denny's Restaurants continue to be operated by such Denny's Franchisees under the Denny's name for so long as Parent's senior management reasonably believes such continued operation is in the best interest of Parent and (ii) such sales, and such leases or subleases, do not violate, conflict with, result in the breach of or constitute a default under any provision of, or give rise to any right to terminate, any indenture, agreement or other instrument to which Parent, any Borrower or any Subsidiary is a party;
(i) Borrower may sell, transfer or otherwise dispose of Properties Held for Sale to an unaffiliated third party; and
(fj) the any Borrower or any Subsidiary Loan Parties and the Subsidiaries Party other than a First-Tier Subsidiary may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses permitted by Section 6.04(j). provided, however, that any sale, transfer, exchange or other disposition of assets (x) permitted by clause (b), (c) and (d) above), and if the transaction has a value of $25,000,000 or more, clauses (e) or (i) above shall not be permitted unless such disposition is for Fair Market Value and (y) for gross consideration in excess of (A) $100,000 for any individual sale, transfer, exchange or other disposition and (B) $500,000 for all such sales, transfers, exchanges or other dispositions permitted by clause (b), (e), (f) aboveor (i) shall not be permitted unless such disposition is for at least 60% cash consideration and all noncash consideration received in respect thereof shall be in the form of a note, an asset or such other form as shall be reasonably satisfactory to the Loan Parties are in Pro Forma Compliance Administrative Agent; and provided further that any transaction permitted by clause (c), (e), (f) or (g) above shall not be permitted unless at the time thereof and immediately after giving effect to such transactionthereto no Event of Default or Default shall have occurred and be continuing.
Appears in 1 contract
Samples: Credit Agreement (Dennys Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge Enter into any transaction of merger or consolidate with consolidation or liquidate, wind-up or dissolve itself (or suffer any other PersonSchedule 4, Negative Covenants liquidation or dissolution), or permit any other Person to merge into or consolidate with itconvey, or sell, transferlease or sub-lease (as lessor or sublessor), lease license or sub-license (as licensor or sub-licensor), exchange, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its business, assets or property of any kind whatsoever, including the consolidated assets (including by way Equity Interests of a sale Subsidiary, whether real, personal or transfer of stock of Subsidiaries) of the Guarantors mixed and whether tangible or intangible (whether now owned or hereafter acquired)) 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 thatfor:
(a) the Guarantors sale by Tensar and the its Subsidiaries may sell assets or properties of inventory in the ordinary course of business;
(b) the Guarantors sale or discount by Tensar or any of its Subsidiaries in each case without recourse and in the Subsidiaries may sellordinary course of business of overdue accounts receivable arising in the ordinary course of business, transfer, lease but only in connection with the compromise or otherwise dispose collection thereof consistent with customary industry practice (and not as part of any assets bulk sale or property in transactions only among the Guarantors and the Subsidiariesfinancing transaction);
(ic) the disposition of obsolete or worn out assets, scrap and Permitted Investments in the ordinary course of business;
(d) the NAG Sale-Leaseback provided that the proceeds of such sale are used to pay in full the purchase price for the NAG Facility;
(e) the sale of assets on the Effective Date under the Asset Purchase Agreement;
(f) the purchase and sale of commodities by Tensar under this Agreement;
(g) the purchase and sale of commodities by Tensar Holdings pursuant to the Tensar Holdings Commodities Purchase Agreement and by Tensar pursuant to the Second Lien Commodities Purchase Facility Agreement; and
(h) 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 merger or consolidation of any Loan Party wholly owned Subsidiary into or Subsidiary may merge, consolidate or liquidate with or into a Loan Party Tensar in a transaction in which such Loan Party Tensar is the surviving entity; provided that if corporation, (x) the Borrower merges, consolidates merger or liquidates consolidation of any wholly owned Subsidiary into or with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party Tensar or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is (A) a Tensar Party, the surviving entity of such transaction shall be a Tensar Party and (B) a Domestic Subsidiary, the surviving entity of such transaction shall be a Domestic Subsidiary), (y) Permitted Acquisitions by Tensar or any of its Subsidiaries (otherwise permitted by Section 1.04(h) of this Schedule 4), and (z) the Loan Parties and the Subsidiaries may effect sales and transfers of assets and mergerssale, consolidationslease, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sellsub-lease, transfer license, sub-license or otherwise dispose other disposition of any part of its business, assets or property (except any Equity Interests of Tensar) so long as (i) such Asset Sale is for consideration at least 80% of which is cash or other (and no portion of the remaining consideration reasonably determined by the Loan Parties to shall be in an amount the form of Financing Obligations of Tensar any of its Subsidiaries), (ii) such consideration is at least equal to the fair market value of such the assets being sold, transferred, leased, licensed or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased, licensed or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is this clause (z) shall not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that exceed $40,000,000 in the case of any transaction under clauses (c) and (d) aboveaggregate. Schedule 4, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction.Negative Covenants
Appears in 1 contract
Samples: Working Capital Murabaha Facility Agreement (Tensar 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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sellimmediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(ix) any Loan Party or Wholly Owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any Wholly Owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly Owned Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary and no Person other than a Loan Party the Borrower or a Wholly Owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (z) the Loan Parties Borrower and the Subsidiaries may 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 make Permitted Reorganization Transactions;Acquisitions.
(eb) the Loan Parties and the Subsidiaries may sellMake any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) (x) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges this paragraph (b) shall not exceed (1) $5,000,000 in any fiscal year or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that (2) $15,000,000 in the case of any transaction under clauses aggregate or (cy) and to the extent the Net Cash Proceeds (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after calculated without giving effect to the reinvestment right therein) of such transactionAsset Sale exceed $15,000,000, such Net Cash Proceeds are applied to prepay Term Loans pursuant to Section 2.13 (without giving effect to any right of reinvestment).
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of its property or assets as part of an Asset Sale, or purchase or otherwise acquire (in one or a series of related transactions) any part of the consolidated property or assets (including by way other than purchases or other acquisitions of a sale or transfer inventory, materials, equipment and intangible assets in the ordinary course of stock of Subsidiariesbusiness) of any person (or agree to do any of the Guarantors (whether now owned or hereafter acquiredforegoing at any future time), except that:
(a) Capital Expenditures by the Guarantors 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, subject to Section 2.13(b), make any Asset Sale so long as (i) the Borrower or its Subsidiaries receive consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Board of Directors of the Borrower or such Subsidiary) of the assets sold, (ii) at least 75% of the consideration received by the Borrower and the Subsidiaries in respect thereof is in the form of cash or Cash Equivalents and (iii) the aggregate consideration received in respect of all Asset Sales pursuant to this paragraph (b) shall not exceed $10,000,000 in any four consecutive fiscal quarters of the Borrower;
(c) investments and Permitted Acquisitions 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 such lease does not create a Capital Lease Obligation except to the extent permitted by Section 6.01);
(e) the Borrower and its Subsidiaries may sell assets or properties discount, in each case without recourse and in the ordinary course of business, 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);
(bf) licenses, cross-licenses or 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, shall be permitted;
(g) the Guarantors and Acquisition shall be permitted;
(h) the Subsidiaries Borrower or any Domestic Wholly Owned Subsidiary of the Borrower may sell, transfer, lease or otherwise dispose of any transfer assets or property in transactions only among lease to or acquire or lease assets from the Guarantors and Borrower or any other Domestic Wholly Owned Subsidiary or any Domestic Wholly Owned Subsidiary may be merged into the Subsidiaries;Borrower (as long as the Borrower is the surviving corporation of such merger as a Wholly Owned Subsidiary of) or any other Domestic Wholly Owned Subsidiary of the Borrower; and
(i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party the grant of the option described in a transaction in which such Loan Party is the surviving entitySchedule 6.05(h) shall be permitted; provided that if the Borrower mergessale contemplated thereby shall not be permitted without the prior written consent of the Required Lenders. To the extent the Required Lenders waive the provisions of this Section 6.05 with respect to the sale of any Collateral, consolidates or liquidates with or into a Loan Party in which such Loan Party any Collateral is the surviving entitysold as permitted by this Section 6.05, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents Collateral (unless sold to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party Holdings or a Subsidiary receives any consideration;
(dof Holdings) shall be sold free and clear of the Loan Parties Liens created by the Security Documents, and the Subsidiaries may effect sales Administrative Agent and transfers of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors (including Collateral Agent shall be authorized to take any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries actions deemed appropriate in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionforegoing.
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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary (other than pursuant to any Permitted Interest Transfer 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 purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other person, except that:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (ix) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any Subsidiary may merge, merge into or consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than (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 and (B) to the extent any person other than the Borrower or a wholly owned Subsidiary receives any consideration;
consideration in connection therewith, then such transaction shall be considered as an investment under the applicable paragraph of Section 6.04) and (dz) the Loan Parties Borrower and the Subsidiaries may effect sales and transfers of assets and mergersmake Permitted Acquisitions or any other investment, consolidations, dissolutions and liquidations involving the Guarantors loan or advance permitted pursuant to Section 6.04 (including any Eligible Additional Guarantor that becomes a Guarantor) by merger), and the Subsidiaries in order to effect may enter into Permitted Reorganization Transactions;Joint Ventures.
(eb) the Loan Parties and the Subsidiaries may sell, transfer or Make any Asset Sale otherwise dispose of any assets or property permitted under paragraph (a) above unless such Asset Sale is:
(i) for cash or other consideration reasonably determined by the Loan Parties to be in an amount that is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of; provided that (x) for any disposition of assets with a fair market value of more than $50,000,000, at least 75% of such consideration is cash and (y) the fair market value of all assets sold, transferred, leased or property; anddisposed of (other than assets which are sold, transferred, leased or disposed of in order to comply with any requirement, rule or regulation of, or order by, or agreement with, any Governmental Authority in connection with a Permitted Acquisition) pursuant to this clause (b)(i) shall not exceed $300,000,000 in any fiscal year;
(fii) a Receivables Transaction, provided that (x) the Loan Parties material terms and conditions and the structure of such Receivables Transaction have been approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed), (y) any Liens granted in connection with such Receivables Transaction shall comply with the terms of Section 6.02(p) and (z) the aggregate Receivables Transaction Amount outstanding at any time in respect of all Receivables Transactions does not exceed $2,000,000,000 (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 Syndications on or after the Closing 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 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 enter into mergers and consolidations abandon, allow to effect asset acquisitions; provided lapse or otherwise dispose of intangible property that if the Borrower merges or consolidates with any other Person and if such Subsidiary shall determine in its reasonable business judgment is immaterial to the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations conduct of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case its business;
(vii) forgiveness of any transaction under clauses loans or advances made pursuant to Section 6.04(e);
(cviii) transfers of property subject to casualty or a condemnation proceeding;
(ix) Restricted Payments permitted pursuant to Section 6.06;
(x) for the sale or other disposition of real estate and related assets (dother than Hospitals and Receivables) abovefor the fair market value thereof in cash, and if the transaction has a value of in an aggregate amount not to exceed $25,000,000 300,000,000; or
(xi) any investment, loan or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect advance permitted pursuant to such transactionSection 6.04.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower 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 or any division or business unit of any other person, except thatthat this Section shall not prohibit:
(a) (i) the Guarantors purchase and sale of inventory in the ordinary course of business 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, (iv) the sale of Permitted Investments in the ordinary course of business and/or (v) the sale of inventory in connection with any “going out of business” or similar sale, provided that the Administrative Agent has been given at least seven days’ prior notice of such “going out of business” sale;
(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, consolidation or amalgamation of any Subsidiary that is not a Loan Party into or with any other Subsidiary that is not a Loan Party and/or (ii) the liquidation or dissolution or change in form of entity of any Subsidiary that is not a Loan Party 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; provided that any transaction consummated in reliance on this Section 6.05(b) shall not impair the value of the Collateral, taken as a whole,
(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 Loan Party in reliance on this paragraph (c) shall be made in compliance with Section 6.07 and shall be included in Section 6.05(h);
(d) [Reserved];
(e) Sale and Lease Back Transactions permitted by Section 6.03;
(f) Investments permitted by Section 6.04, Permitted Liens, 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 (or required to be included in this clause (h) pursuant to Section 6.05(c)); provided, that (i) the aggregate gross proceeds (including noncash proceeds) of any or all assets, sold, transferred, leased or otherwise disposed of in reliance under this paragraph (h) shall not exceed $2 million after the date of this Agreement and (ii) no Default or Event of Default exists or would result therefrom;
(i) the sale or transfer of inventory in the ordinary course of business to facilitate the Canadian operations of the Borrower and the Subsidiaries may sell assets in a manner consistent with past practice;
(j) leases, licenses, or properties subleases or sublicenses of any real or personal property in the ordinary course of business;
(bk) sales, leases or other dispositions of inventory of the Guarantors Borrower and the Subsidiaries may sell, transfer, lease determined by the management of the Borrower to be no longer useful or otherwise dispose necessary in the operation of the business of the Borrower or any assets or property in transactions only among the Guarantors and of the Subsidiaries;
. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) any Loan Party no sale, transfer or Subsidiary may mergeother disposition of assets shall be permitted by this Section 6.05 (other than Sections 6.05(b), consolidate or liquidate with or into a Loan Party in a transaction in which (c), (d) and/or (i)) unless such Loan Party disposition is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party for fair market value and (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) shall not apply to any Subsidiary may merge, consolidate individual transaction or liquidate series of related transactions involving assets with a fair market value of less than $1 million or into to other transactions involving assets with a fair market value of not more than $2.5 million in the aggregate for all such transactions during the term of this Agreement. To the extent any other Subsidiary Collateral is disposed of in a transaction in which the surviving entity is a Subsidiary and no Person expressly permitted by this Section 6.05 to any person other than a Loan Party Holdings, the Borrower or a Subsidiary receives any consideration;
(d) Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Parties Documents, and the Subsidiaries may effect sales Administrative Agent shall take, and transfers of assets and mergersshall be authorized by each Lender to take, consolidations, dissolutions and liquidations involving any actions reasonably requested by the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries Borrower in order to effect Permitted Reorganization Transactions;
(e) evidence the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionforegoing.
Appears in 1 contract
Samples: Senior Secured Priming and Superpriority Debtor in Possession Credit Agreement (Claires Stores 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary (other than pursuant to any Permitted Interest Transfer 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 purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other person, except that:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (ix) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any Subsidiary may merge, merge into or consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than (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 and (B) to the extent any person other than the Borrower or a wholly owned Subsidiary receives any consideration;
consideration in connection therewith, then such transaction shall be considered as an investment under the applicable paragraph of Section 6.04) and (dz) the Loan Parties Borrower and the Subsidiaries may effect sales and transfers of assets and mergersmake Permitted Acquisitions or any other investment, consolidations, dissolutions and liquidations involving the Guarantors loan or advance permitted pursuant to Section 6.04 (including any Eligible Additional Guarantor that becomes a Guarantor) by merger), and the Subsidiaries in order to effect may enter into Permitted Reorganization Transactions;Joint Ventures.
(eb) the Loan Parties and the Subsidiaries may sell, transfer or Make any Asset Sale otherwise dispose of any assets or property permitted under paragraph (a) above unless such Asset Sale is:
(i) for cash or other consideration reasonably determined by the Loan Parties to be in an amount that is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of; provided that (x) for any disposition of assets with a fair market value of more than $50,000,000, at least 75% of such consideration is cash and (y) the fair market value of all assets sold, transferred, leased or property; anddisposed of (other than assets which are sold, transferred, leased or disposed of in order to comply with any requirement, rule or regulation of, or order by, or agreement with, any Governmental Authority in connection with a Permitted Acquisition) pursuant to this clause (b)(i) shall not exceed $300,000,000 in any fiscal year, provided further that, prior to the Incremental Asset Sale Termination Date, such annual amount shall be increased by an aggregate amount not to exceed $750,000,000;
(fii) a Receivables Transaction, provided that (x) the Loan Parties material terms and conditions and the structure of such Receivables Transaction have been approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed), (y) any Liens granted in connection with such Receivables Transaction shall comply with the terms of Section 6.02(p) and (z) the aggregate Receivables Transaction Amount outstanding at any time in respect of all Receivables Transactions does not exceed $2,000,000,000 (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 Syndications on or after the Closing 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 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 enter into mergers and consolidations abandon, allow to effect asset acquisitions; provided lapse or otherwise dispose of intangible property that if the Borrower merges or consolidates with any other Person and if such Subsidiary shall determine in its reasonable business judgment is immaterial to the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations conduct of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case its business;
(vii) forgiveness of any transaction under clauses loans or advances made pursuant to Section 6.04(e);
(cviii) transfers of property subject to casualty or a condemnation proceeding;
(ix) Restricted Payments permitted pursuant to Section 6.06; or
(x) for the sale or other disposition of real estate and related assets (dother than Hospitals and Receivables) abovefor the fair market value thereof in cash, and if the transaction has a value of in an aggregate amount not to exceed $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction300,000,000.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with Neither the Borrower nor any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of Subsidiary (in one transaction or in a series of transactions) will wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of all or any substantial part of the consolidated assets (including by way of a sale its property or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)assets, except thatexcept:
(a) mergers between the Guarantors Borrower and a Subsidiary (provided that Borrower shall be the Subsidiaries may sell assets surviving corporation) or properties between Subsidiaries;
(b) sales of inventory, marketable securities, receivables owed to a foreign subsidiary and receivables of the Borrower or any Subsidiary from export sales, in each case in the ordinary course of business;
(bc) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents sales permitted pursuant to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any considerationSection 6.06;
(d) subject to Section 6.03(e) below, any merger (other than as described in (a) above), consolidation, dissolution or liquidation; provided, however, that (i) immediately prior to and on a Pro Forma Basis after giving effect to such transaction no Default or Event of Default has occurred or is continuing, (ii) if such transaction involves a Person other than the Loan Parties Borrower and its Subsidiaries, the Subsidiaries may effect sales Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such transaction complies with the requirements set forth in this section and transfers of assets and mergers(iii) if such transaction involves the Borrower, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and Borrower is the Subsidiaries in order to effect Permitted Reorganization Transactionssurviving entity;
(e) a disposition of less than substantially all of the Loan Parties assets of the Borrower and its Subsidiaries, taken as a whole, (i) for consideration which represents fair market value (as reasonably determined in good faith by the Subsidiaries may sellBorrower's Board of Directors) or, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably at a price determined by the Loan Parties Board of Directors of the Borrower to be in an amount at least equal the best interests of the Borrower under circumstances where the Board of Directors of the Borrower deems a sale on terms other than fair market value to be in the fair value best interest of the Borrower, (ii) immediately prior to and on a Pro Forma Basis after giving effect thereto, no Event of Default or Default shall have occurred and be continuing and (iii) if the transaction involves consideration of $20,000,000 or more, the Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such assets or propertytransaction complies with the requirements set forth in this section; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations acquisitions of an interest in any business from any Person (whether pursuant to effect asset acquisitionsa merger, an acquisition of stock, assets, a business unit or otherwise); provided that (i) immediately prior to and on a Pro Forma Basis after giving effect thereto, no Event of Default or Default shall have occurred and be continuing and (ii) if the Borrower merges transaction involves consideration equal to or consolidates with any other Person and if in excess of $10,000,000, the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person Administrative Agent shall expressly assume all the obligations promptly receive a certificate of a Financial Officer of the Borrower under confirming that such transaction complies with the requirements set forth in this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction.section. D5
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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower or less than all the Equity Interests of any Subsidiary, except that:
or purchase, lease or otherwise acquire (ain one transaction or a series of transactions) all or any substantial part of the Guarantors assets of any other person or assets that are substantial in relation to the Borrower and the Subsidiaries taken as a whole, except that (i) the Borrower and any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sellimmediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(iA) any Loan Party or Wholly Owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiB) any Wholly Owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly Owned Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary and no Person person other than a Loan Party the Borrower or a Wholly Owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (C) the Loan Parties Acquisition shall be permitted and (D) the Borrower and the Subsidiaries may 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 make Permitted Reorganization Transactions;Acquisitions.
(eb) the Loan Parties and the Subsidiaries may sellMake any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 85% of which is cash (including, transfer with respect to Asset Sales constituting licenses of intellectual property relating to pharmacological products or otherwise dispose of any assets or property for cash or other medical devices, through royalty payments), (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) (other than auction rate securities and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is than Required Divestitures) shall not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that exceed $200,000,000 in the case aggregate during the term of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionthis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Alpharma 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) or 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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
, (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (iA) any Loan Party or wholly owned Domestic Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiB) any wholly owned Domestic Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Domestic Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary that is a Guarantor and no Person person other than a Loan Party the Borrower or a wholly owned Subsidiary receives any consideration;consideration and (C) in connection with any Permitted Acquisition pursuant to Section 6.04(c), the Borrower or any wholly owned Subsidiary that is a Guarantor may 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 that is a Guarantor and (iii) the Borrower and its Subsidiaries may make dispositions of obsolete equipment not used or useful in the business.
(db) Engage in any Asset Sale not otherwise prohibited by Section 6.05(a) unless all of the following conditions are met: (i) the Loan Parties and the Subsidiaries may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount received is at least equal to the fair market value of such assets or propertyassets; and
(fii) 90% of the consideration received is cash; (iii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitionsNet Cash Proceeds of such Asset Sale are applied as required by Section 2.13(b); provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (civ) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to the sale or other disposition of the assets included within the Asset Sale and the repayment of Indebtedness with the proceeds thereof, the Borrower is in compliance on a pro forma basis with the covenants set forth in Sections 6.12, 6.13 and 6.14 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 result from such transactionsale or other disposition.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with Neither the Borrower nor any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of Subsidiary (in one transaction or in a series of transactions) will wind-up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of all or any substantial part of the consolidated assets (including by way of a sale its property or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)assets, except thatexcept:
(a) mergers between the Guarantors Borrower and a Subsidiary (provided that Borrower shall be the Subsidiaries may sell assets surviving corporation) or properties between Subsidiaries;
(b) sales of inventory, marketable securities, receivables owed to a foreign subsidiary and receivables of the Borrower or any Subsidiary from export sales, in each case in the ordinary course of business;
(bc) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents sales permitted pursuant to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any considerationSection 6.06;
(d) subject to Section 6.03(e) below, any merger (other than as described in (a) above), consolidation, dissolution or liquidation; provided, however, that (i) immediately prior to and on a Pro Forma Basis after giving effect to such transaction no Default or Event of Default has occurred or is continuing, (ii) if such transaction involves a Person other than the Loan Parties Borrower and its Subsidiaries, the Subsidiaries may effect sales Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such transaction complies with the requirements set forth in this section and transfers of assets and mergers(iii) if such transaction involves the Borrower, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and Borrower is the Subsidiaries in order to effect Permitted Reorganization Transactionssurviving entity;
(e) a disposition of less than substantially all of the Loan Parties assets of the Borrower and its Subsidiaries, taken as a whole, (i) for consideration which represents fair market value (as reasonably determined in good faith by the Subsidiaries may sellBorrower's Board of Directors) or, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably at a price determined by the Loan Parties Board of Directors of the Borrower to be in an amount at least equal the best interests of the Borrower under circumstances where the Board of Directors of Borrower deems a sale on terms other than fair market value to be in the fair value best interest of the Borrower, (ii) immediately prior to and on a Pro Forma Basis after giving effect thereto, no Event of Default or Default shall have occurred and be continuing and (iii) if the transaction involves consideration of $20,000,000 or more, the Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such assets or propertytransaction complies with the requirements set forth in this section; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations acquisitions of an interest in any business from any Person (whether pursuant to effect asset acquisitionsa merger, an acquisition of stock, assets, a business unit or otherwise); provided that (i) immediately prior to and on a Pro Forma Basis after giving effect thereto, no Event of Default or Default shall have occurred and be continuing and (ii) if the Borrower merges transaction involves consideration equal to or consolidates with any other Person and if in excess of $10,000,000, the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person Administrative Agent shall expressly assume all the obligations promptly receive a certificate of a Financial Officer of the Borrower under confirming that such transaction complies with the requirements set forth in this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionsection.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired) (including, in each case, pursuant to a Delaware LLC Division), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower 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 or any division, unit or business of any person, except thatthat this Section shall not prohibit:
(ai) the Guarantors purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary and the Subsidiaries may sell assets sale of receivables by any Foreign Subsidiary pursuant to non-recourse factoring arrangements in the ordinary course of business of such Foreign Subsidiary, (ii) the acquisition or properties 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 Guarantors time thereof and the Subsidiaries may sellimmediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) the merger or Delaware LLC Division of any Loan Party Subsidiary into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger, consolidation or Delaware LLC Division of any Subsidiary may merge, consolidate into or liquidate with or into a any Subsidiary Loan Party in a transaction in which such the surviving or resulting entity is a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger, consolidation or Delaware LLC Division of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving entity; provided that liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower mergesdetermines in good faith that such liquidation, consolidates dissolution or liquidates with or into a Loan Party change in which such Loan Party form is in the surviving entity, such Loan Party shall expressly assume all the obligations best interests of the Borrower under this Agreement and is not materially disadvantageous to the other Loan Documents to which the Borrower is a party and Lenders or (iiv) any Subsidiary may merge, consolidate merge or liquidate effect a Delaware LLC Division with or into any other Subsidiary person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a transaction in Subsidiary, which the surviving entity is a Subsidiary and no Person other than shall be a Loan Party 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 receives (upon voluntary liquidation or otherwise); provided, that any considerationsales, 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 6.07 and shall be included in Section 6.05(g);
(d) the Loan Parties Sale and the Subsidiaries may 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 Reorganization TransactionsLease-Back Transactions permitted by Section 6.03;
(e) the Loan Parties Investments permitted by Section 6.04, Permitted Liens, Dividends permitted by Section 6.06 and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; andcapital expenditures;
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations sale of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that defaulted receivables in the case ordinary course of any transaction under clauses business and not as part of an accounts receivables financing transaction;
(cg) and sales, transfers, leases, Delaware LLC Division or other dispositions of assets not otherwise permitted by this Section 6.05 (dor required to be included in this clause (g) abovepursuant to Section 6.05(c)); provided, and if the transaction has a value of $25,000,000 or more, clauses that (ei) and (fA) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionsale, transfer, lease, Delaware LLC Division or other disposition of assets, the application of proceeds thereof, the assumption and incurrence of any Indebtedness and any related transactions, the Total Net First Lien Leverage Ratio of the Borrower on a Pro Forma Basis would be equal to or less than 4.00 to 1.00 or (B) if otherwise, then the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased, Delaware LLC Division or otherwise disposed of in reliance upon this clause (g)(i)(B) 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 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 and (iii) the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger, consolidation or Delaware LLC Division in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or Delaware LLC Division (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;
(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);
(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) (i) after giving effect to such exchange, the application of proceeds thereof, the assumption and incurrence of any Indebtedness and any related transactions, the Total Net First Lien Leverage Ratio of the Borrower on a Pro Forma Basis would be equal to or less than 4.00 to 1.00 or (ii) if otherwise, the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) 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 5.04; (B) no Default or Event of Default exists or would result therefrom;
(n) the sale of assets described on Schedule 6.05;
(o) the Acquisition; and
(p) the purchase and sale or other transfer of Receivables Assets in connection with a Permitted Supplier Finance Facility. 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 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 other Designated Non-Cash Consideration received pursuant to this clause (c) 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) shall be deemed to be cash. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than Holdings, the Borrower or any Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.
Appears in 1 contract
Samples: Second Lien Bridge Credit Agreement (Berry Global 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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower 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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
, (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (ix) any Loan Party or Wholly-Owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any Wholly-Owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly-Owned Subsidiary in a transaction in which the surviving entity is a Wholly-Owned Subsidiary and no Person other than a Loan Party the Borrower or a Wholly-Owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (iii) the any Loan Parties and the Subsidiaries Party (other than Borrower) may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any or all of its assets or property any Equity Interests of any Subsidiary to any other Loan Party and (iv) the Borrower or any Subsidiary may consummate any Sale and Leaseback Transaction permitted by Section 6.03.
(b) Make any Asset Sale unless (i) such Asset Sale is for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to 75% of which is cash and is not less than the fair market value of such assets asset or property; and
, (fii) at the Loan Parties time thereof and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionthereto no Event of Default shall have occurred and be continuing and (iii) the Borrower is in compliance with the financial covenants set forth in Section 6.10.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge Enter into transaction of merger or consolidate with consolidation or liquidate, wind-up or dissolve itself (or suffer any other Personliquidation or dissolution), or permit any other Person to merge into or consolidate with itconvey, or sell, transferlease or sub-lease (as lessor or sublessor), lease license or sub-license (as licensor or sub-licensor), exchange, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its business, assets or property of any kind whatsoever, including the consolidated assets (including by way Equity Interests of a sale Subsidiary, whether real, personal or transfer of stock of Subsidiaries) of the Guarantors mixed and whether tangible or intangible (whether now owned or hereafter acquired)) 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 thatfor:
(a) the Guarantors sale by Tensar and the its Subsidiaries may sell assets or properties of inventory in the ordinary course of business;
(b) the Guarantors sale or discount by Tensar or any of its Subsidiaries in each case without recourse and in the Subsidiaries may sellordinary course of business of overdue accounts receivable arising in the ordinary course of business, transfer, lease but only in connection with the compromise or otherwise dispose collection thereof consistent with customary industry practice (and not as part of any assets bulk sale or property in transactions only among the Guarantors and the Subsidiariesfinancing transaction);
(ic) the disposition of obsolete or worn out assets, scrap and Permitted Investments in the ordinary course of business;
(d) the NAG Sale-Leaseback provided that the proceeds of such sale are used to pay in full the purchase price for the NAG Facility;
(e) the sale of assets on the Effective Date under the Asset Purchase Agreement;
(f) the purchase and sale of commodities by Tensar under the Commodities Purchase Agreement;
(g) the purchase and sale of commodities by Tensar Holdings pursuant to the Tensar Holdings Commodities Purchase Agreement and by Tensar pursuant to the Second Lien Commodities Purchase Facility Agreement; and
(h) 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 merger or consolidation of any Loan Party wholly owned Subsidiary into or Subsidiary may merge, consolidate or liquidate with or into a Loan Party Tensar in a transaction in which such Loan Party Tensar is the surviving entity; provided that if corporation, (x) the Borrower merges, consolidates merger or liquidates consolidation of any wholly owned Subsidiary into or with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party Tensar or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is (A) a Tensar Party, the surviving entity of such transaction shall be a Tensar Party and (B) a Domestic Subsidiary, the surviving entity of such transaction shall be a Domestic Subsidiary), (y) Permitted Acquisitions by Tensar or any of its Subsidiaries (otherwise permitted by Section 1.04(h) of this Schedule 4), and (z) the Loan Parties and the Subsidiaries may effect sales and transfers of assets and mergerssale, consolidationslease, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sellsub-lease, transfer license, sub-license or otherwise dispose other disposition of any part of its business, assets or property (except any Equity Interests of Tensar) so long as (i) such Asset Sale is for consideration at least 80% of which is cash or other (and no portion of the remaining consideration reasonably determined by the Loan Parties to shall be in an amount the form of Financing Obligations of Tensar any of its Subsidiaries), (ii) such consideration is at least equal to the fair market value of such the assets being sold, transferred, leased, licensed or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased, licensed or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is this clause (z) shall not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that exceed $40,000,000 in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionaggregate.
Appears in 1 contract
Samples: Lease Financing and Purchase Option Agreement (Tensar Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 transactionsrelated transactions occurring within any 12 consecutive month period) all or any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired) or any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions occurring within any 12 consecutive month period) assets that are substantial in relation to the Borrower and the Subsidiaries taken as a whole (including by means of a merger or consolidation in which the surviving person is the Borrower or a Wholly Owned Subsidiary), except that:
that (a) the Guarantors Borrower and any of the Subsidiaries may purchase and sell assets or properties inventory in the ordinary course of business;
, (b) the Guarantors Borrower or any of the Subsidiaries may purchase or license pharmaceutical products from any third party; (c) if (i) at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, and (ii) in the event the aggregate amount of consideration paid exceeds $50,000,000, the Borrower shall have delivered to the Administrative Agent calculations demonstrating pro forma compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 as of the end of and for the most recent period of four fiscal quarters for which financial statements shall have been delivered pursuant to Section 5.03(a) or (b), giving effect to such acquisition and the incurrence of any related Indebtedness as if they had occurred at the beginning of such period, the Borrower or any of the Subsidiaries may acquire assets that are substantial in relation to the Borrower and the Subsidiaries may sell, transfer, lease taken as a whole (including by means of a merger or otherwise dispose consolidation in which the surviving person is the Borrower or a Wholly Owned Subsidiary) if the consideration paid in such acquisition consists of one or more of the following: (A) common stock of the Borrower or (B) cash in an amount equal to proceeds of Indebtedness permitted under Section 6.01(h) or the proceeds of any assets issuance by the Borrower of its common stock (but only, in the case of clause (B), if such proceeds were received within 12 months prior to such acquisition) or property (C) cash or other consideration (but only, in transactions only among the Guarantors case of clause (C), if at the time such acquisition is made, the Leverage Ratio shall not be greater than 3.0 to 1.0, on a pro forma basis as of the end of and for the most recent period of four fiscal quarters for which financial statements shall have been delivered pursuant to Section 5.03(a) or (b), giving effect to such acquisition and the Subsidiaries;
incurrence of any related Indebtedness as if they had occurred at the beginning of such period (and if the aggregate amount of such cash or other consideration exceeds $50,000,000, the Borrower shall have delivered to the Administrative Agent on or prior to the date of the consummation of such acquisition, a certificate setting forth the calculations demonstrating such Leverage Ratio)) and (d) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) any Loan Party or Wholly Owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party corporation and (ii) any Wholly Owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly Owned Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary and no Person person other than a Loan Party the Borrower or a Wholly Owned Subsidiary receives any consideration;
(d) the Loan Parties and the Subsidiaries may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with any other Personperson, or permit any other Person person to merge into or consolidate with it, or liquidate or dissolve, or sell, transfer, lease lease, issue or otherwise dispose of (in one transaction or in a series of transactions) any assets (whether now owned or hereafter acquired) of Holdings or any Subsidiary, 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 consolidated assets of any other person, except for (including i) the purchase, disposition and sale by way Holdings, the Borrower or any Subsidiary of a inventory or the licensing of intellectual property in the ordinary course of business, (ii) the sale or transfer discount by Holdings, the Borrower or any Subsidiary in each case without recourse and in the ordinary course of stock business of Subsidiariesoverdue 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) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, the sale, transfer, lease, issue or other disposition of any property by (x) any Subsidiary that is not a Loan Party to Holdings or any Subsidiary and (y) any other Loan Party to any other Loan Party; provided, that (A) in the case of clause (y) after giving effect to any such disposition by Borrower, Borrower and the Irish Guarantors retain assets and operations sufficient to contribute at least 70% of consolidated EBITDA for the twelve month period most recently ending and (B) in the case of this clause (iii), the Loan Parties shall have complied with Section 5.09(a) of this Agreement to maintain the Guarantors Collateral Agent's perfected Lien on any assets transferred to a Loan Party, including, without limitation, ensuring that Collateral Agent has a perfected Lien on any intellectual property that is transferred between or among Loan Parties, (iv) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, the sale, transfer, lease, issue or other disposition of the Non-Core Netg Assets, (v) the sale, transfer, lease or disposition by Holdings or any Subsidiary of any obsolete, surplus, worn out, or no longer useful, property, whether now owned or hereafter acquired), except that:
(a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business;
, (bvi) if at the Guarantors time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, the Subsidiaries may sellsale, transfer, lease, issue or other disposition of any other property by Holdings or any Subsidiary; provided, that (A) such sale, transfer, lease or otherwise dispose disposition is for consideration at least 75% of which is cash (and no portion of the remaining consideration shall be in the form of Indebtedness of Holdings, the Borrower or any Subsidiary), (B) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (C) the fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (vi) shall not exceed $10,000,000 in any fiscal year and (vii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (x) the merger or consolidation of any assets wholly owned Subsidiary (other than the Borrower) into or property in transactions only among with the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if corporation, (y) the Borrower merges, consolidates merger or liquidates consolidation of any wholly owned Subsidiary (other than the Borrower) into or with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other wholly owned Subsidiary (other than the Borrower) 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 (provided that if any party to any such transaction is (A) a Loan Party, the surviving entity of such transaction shall be a Loan Party or and (B) a Subsidiary receives any consideration;
(d) Domestic Subsidiary, the Loan Parties and the Subsidiaries may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value surviving entity of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person transaction shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is be a party; provided that in the case of any transaction under clauses (cDomestic Subsidiary) and (dz) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Permitted Acquisitions by any Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionParty.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into (a) Merge, amalgamate or consolidate with or into any other Personperson, or permit any other Person 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 any substantial part substantially all of the consolidated assets (including by way of a sale Loan Party (whether now owned or transfer of stock of Subsidiarieshereafter acquired) or less than all or substantially all of the Guarantors Equity Interests of any Loan Party (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(a) that any Subsidiary of the Guarantors and Borrower may liquidate or dissolve if the Subsidiaries may sell assets Borrower determines in good faith that such liquidation or properties dissolution is in the ordinary course best interests of business;the Borrower and is not materially disadvantageous to the Lenders.
(b) the Guarantors and the Subsidiaries may sell, transfer, lease or Engage in any Asset Sale not otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
permitted under paragraph (a) above unless (i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party consideration is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration;
(d) the Loan Parties and the Subsidiaries may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of, and (fii) the Loan Parties and fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) after the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is Effective Date shall not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that exceed AUD 20,000,000 in the case of aggregate in any transaction under clauses fiscal year.
(c) Acquire any freehold or leasehold real property unless (A) the acquisition is a result of an acquisition of Equity Interests of a person and (dall of the leasehold or freehold real property owned by that person is transferred to an Australian Affiliate Land Company on or before the time that the Acquired Entity executes a supplement making it a party to the Subsidiary Guarantee Agreement pursuant to Section 5.09(b) aboveand, and if to the transaction extent required under Section 5.14, a Land Access Agreement in respect of such real property has a value of $25,000,000 or more, clauses (e) and (f) abovebeen executed by the relevant Loan Party, the Loan Parties are in Pro Forma Compliance immediately after giving effect Affiliate Australian Land Company and, where the land the subject of such agreement is not owned by an Affiliate Australian Land Company, the registered proprietor of that land and that executed agreement has been delivered to the US Agent on or prior to the date of transfer, or (B) such transactionproperty becomes Collateral upon the acquisition thereof subject to Security Documents acceptable to the US Agent.
Appears in 1 contract
Samples: Syndicated Facility Agreement (Oil States International, Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with Neither the Borrower nor any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of Subsidiary (in one transaction or in a series of transactions) will wind-up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of all or any substantial part of the consolidated assets (including by way of a sale its property or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)assets, except thatexcept:
(a) mergers between the Guarantors Borrower and a Subsidiary or between Subsidiaries;
(b) sales of inventory, marketable securities, receivables owed to a foreign subsidiary and receivables of the Subsidiaries may sell assets Borrower or properties any Subsidiary from export sales, in each case in the ordinary course of business;
(bc) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents sales permitted pursuant to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any considerationSection 6.06;
(d) subject to Section 6.03(e) below, any merger (other than as described in (a) above), consolidation, dissolution or liquidation; provided, however, that (i) immediately prior to and on a Pro Forma Basis after giving effect to such transaction no Default or Event 229 of Default has occurred or is continuing, (ii) if such transaction involves a Person other than the Loan Parties Borrower and its Subsidiaries, the Subsidiaries may effect sales Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such transaction complies with the requirements set forth in this section and transfers of assets and mergers(iii) if such transaction involves the Borrower, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and Borrower is the Subsidiaries in order to effect Permitted Reorganization Transactionssurviving entity;
(e) a disposition of less than substantially all of the Loan Parties assets of the Borrower and its Subsidiaries, taken as a whole, (i) for consideration which represents fair market value (as reasonably determined in good faith by the Subsidiaries may sellBorrower's Board of Directors) or, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably at a price determined by the Loan Parties Board of Directors of the Borrower to be in an amount at least equal the best interests of the Borrower under circumstances where the Board deems a sale on terms other than fair market value to be in the fair value best interest of the Borrower, (ii) immediately prior to and on a Pro Forma Basis after giving effect thereto, no Event of Default or Default shall have occurred and be continuing and (iii) if the transaction involves consideration of $20,000,000 or more, the Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such assets or propertytransaction complies with the requirements set forth in this section; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations acquisitions of an interest in any business from any Person (whether pursuant to effect asset acquisitionsa merger, an acquisition of stock, assets, a business unit or otherwise); provided that (i) immediately prior to and on a Pro Forma Basis after giving effect thereto, no Event of Default or Default shall have occurred and be continuing and (ii) if the Borrower merges transaction involves consideration equal to or consolidates with any other Person and if in excess of $10,000,000, the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person Administrative Agent shall expressly assume all the obligations promptly receive a certificate of a Financial Officer of the Borrower under confirming that such transaction complies with the requirements set forth in this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionsection.
Appears in 1 contract
Samples: Competitive Advance, Revolving Credit and Guaranty Agreement (Dentsply International Inc /De/)
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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (iA) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiB) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party the Borrower or a wholly owned Subsidiary receives any consideration;
consideration (dprovided 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) the Loan Parties Borrower and the Subsidiaries may effect sales and transfers of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors make Permitted Acquisitions (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;through mergers of Subsidiaries).
(eb) the Loan Parties and the Subsidiaries may sellMake any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges or consolidates with this paragraph (b) during any other Person and if the Person formed by or surviving any such merger or consolidation is fiscal year shall not the Borrower, such Person shall expressly assume all the obligations exceed an amount equal to 7.5% of the Borrower under this Agreement and Proved PV-10% as of the other Loan Documents end of the fiscal year most recently ended prior to the date of such sale, transfer, lease or disposition for which a Reserve Report has been delivered, calculated on a pro forma basis for acquisitions consummated since the Borrower is a party; provided that end of such fiscal year in the case manner specified in the definition of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction“Proved PV-10%”.
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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower, except that:
(a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business;
(b) the Guarantors and the Subsidiaries may sell, transferpurchase, lease or otherwise dispose acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any assets other person, except that if at the time thereof and immediately after giving effect thereto no Event of Default or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (i) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the 69 surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party the Borrower or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (z) the Loan Parties Borrower and the Subsidiaries may 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 make Permitted Reorganization Transactions;Acquisitions.
(eb) Engage in any other Asset Sale except:
(i) (A) any such Asset Sale the Loan Parties and the Subsidiaries may sellconsideration for which is at least 80% cash, transfer or otherwise dispose of any assets or property for cash or other (B) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or propertydisposed of, (C) the fair market value of all assets sold, transferred, leased or disposed of pursuant to this clause (i) (other than sales of Equity Interests by Foreign Subsidiaries to investors) shall not exceed in any fiscal year the sum of $5,000,000 plus, with respect to each fiscal year commencing on or after January 1, 2002, the excess, if any, of $5,000,000 over the amount of Asset Sales made by the Borrower and the Subsidiaries during the preceding fiscal year and (D) sales of Equity Interests by Foreign Subsidiaries to investors shall not exceed $10,000,000 in any fiscal year; and
(fii) sales by the Loan Parties and Borrower or the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges of brokerage offices, or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations transfers of the Borrower under this Agreement assets of brokerage offices and the other Loan Documents related assets, to which the Borrower is a party; provided that joint ventures in the case ordinary course of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionbusiness.
Appears in 1 contract
Samples: Credit Agreement (Malek Frederic 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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (iA) any Loan Party or Wholly Owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiB) any Wholly Owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly Owned Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary and no Person other than a Loan Party the Borrower or a Wholly Owned Subsidiary receives any consideration;
consideration (dprovided 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) the Loan Parties Borrower and the Subsidiaries may 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 make Permitted Reorganization Transactions;Acquisitions.
(eb) the Loan Parties and the Subsidiaries may sellMake any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 85% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of, (fiii) the Loan Parties fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed $25,000,000 in the aggregate, and (iv) the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided assets sold, transferred, leased or disposed of do not include the Broadway Store or the Uptown Store, except that if the Borrower merges may sell (A) the option to purchase the Stamford Store Property or consolidates (B) the Stamford Store Property in connection with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionStamford Store Lease-Back Transaction.
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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
(ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (iA) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiB) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party the Borrower or a wholly owned Subsidiary receives any consideration;
consideration (dprovided 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) the Loan Parties Borrower and the Subsidiaries may effect sales and transfers of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors make Permitted Acquisitions (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;through mergers of Subsidiaries).
(eb) the Loan Parties and the Subsidiaries may sellMake any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges or consolidates with this paragraph (b) during any other Person and if the Person formed by or surviving any such merger or consolidation is fiscal year shall not the Borrower, such Person shall expressly assume all the obligations exceed an amount equal to 10% of the Borrower under this Agreement and Proved PV-10% as of the other Loan Documents end of the fiscal year most recently ended prior to the date of such sale, transfer, lease or disposition for which a Reserve Report has been delivered, calculated on a pro forma basis for acquisitions consummated since the Borrower is a party; provided that end of such fiscal year in the case manner specified in the definition of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction“Proved PV-10%”.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired), or 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 or any division, unit or business of any other person, except that:that this Section 7.05 shall not prohibit the following (collectively, “Permitted Dispositions”):
(a) (i) the Guarantors purchase and sale of inventory in the ordinary course of 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 shall have occurred and be continuing or would result therefrom, (i) the merger, consolidation or amalgamation of any Subsidiary into (or with) Borrower Holdco or the Lead Borrower in a transaction in which Borrower Holdco or the Lead Borrower, as applicable, is the survivor, (ii) the merger, consolidation or amalgamation of any Subsidiary into or with any Subsidiary of Borrower Holdco that is a Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary of Borrower Holdco that is a Loan Party and, in the case of each of clauses (i) and (ii), no person other than Borrower Holdco, the Lead Borrower or another Loan Party receives any consideration, (iii) the merger, consolidation or amalgamation of any Subsidiary that is not a Loan Party into or with any other Subsidiary that is not a Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Immaterial Subsidiary or an Unrestricted Subsidiary if the Lead Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Lead Borrower and is not materially disadvantageous to the Lenders or (v) the merger, consolidation or amalgamation of any Subsidiary of Borrower Holdco (other than the Lead Borrower) 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 Subsidiary of Borrower Holdco that is a Loan 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 6.01;
(c) sales, transfers, leases or other Dispositions to Borrower Holdco or any of its Subsidiaries may sell (upon voluntary liquidation or otherwise);
(d) 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 of assets in the ordinary course of business of the type not specifically addressed by one of the other subsections of this Section 7.05 (or properties required to be included in this clause (g) pursuant to Section 7.05(c)) (other than bulk sales or other Dispositions of the Inventory of the Loan Parties not in the ordinary course of business in connection with store closures); provided that (i) the aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred or otherwise disposed of in reliance upon this clause (g) 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 the greater of $7,500,000 and 4.50% of the Consolidated Tangible Assets, and no Event of Default shall have occurred and be continuing or would result therefrom;
(h) Permitted Business Acquisitions;
(i) leases, non exclusive licenses, or non exclusive subleases or sublicenses of any real or personal property in the ordinary course of business;
(bj) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiariesreserved;
(ik) any Loan Party reserved;
(l) sales, transfers or Subsidiary may mergeother Dispositions of assets to Foreign Subsidiaries and Unrestricted Subsidiaries not to exceed $12,500,000 in the aggregate for all such sales, consolidate transfers or liquidate with other Dispositions during the term hereof; and
(m) bulk sales or into other Dispositions of the Inventory of a Loan Party not in a transaction the ordinary course of business in which connection with Store closings, at arm’s length; provided, that such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party Store closures and related Inventory Dispositions shall not exceed (i) in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations any Fiscal Year of the Borrower under this Agreement Parent and its Subsidiaries, 5% of the other number of the Loan Documents to which Parties’ Stores as of the Borrower is a party beginning of such Fiscal Year (net of new Store openings) and (ii) any Subsidiary may mergein the aggregate from and after the Closing Date, consolidate or liquidate with or into any other Subsidiary in a transaction in which 10% of the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration;
(d) number of the Loan Parties and Parties’ Stores in existence as of the Subsidiaries may effect Closing Date (net of new Store openings); provided, further that all 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 Inventory in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to connection with Store closings shall be in an amount at least equal accordance with liquidation agreements and with professional liquidators reasonably acceptable to the fair value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionAgent.
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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Default or otherwise dispose Event of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (ix) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party the Borrower or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (z) the Loan Parties Borrower and the Subsidiaries may 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 make Permitted Reorganization Transactions;Acquisitions.
(eb) the Loan Parties and the Subsidiaries may sellEngage in any Asset Sale otherwise permitted under paragraph (a) of this Section unless (i) such Asset Sale is for consideration at least 75% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges this paragraph shall not exceed (i) $5,000,000 in any fiscal year or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that (ii) $10,000,000 in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionaggregate.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired) (including, in each case, pursuant to a Delaware LLC Division), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower 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 or any division, unit or business of any person, except thatthat this Section shall not prohibit:
(ai) the Guarantors purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary and the Subsidiaries may sell assets sale of receivables by any Foreign Subsidiary pursuant to non-recourse factoring arrangements in the ordinary course of business of such Foreign Subsidiary, (ii) the acquisition or properties 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 Guarantors time thereof and the Subsidiaries may sellimmediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) the merger or Delaware LLC Division of any Loan Party Subsidiary into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger, consolidation or Delaware LLC Division of any Subsidiary may merge, consolidate into or liquidate with or into a any Subsidiary Loan Party in a transaction in which such the surviving or resulting entity is a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger, consolidation or Delaware LLC Division of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving entity; provided that liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower mergesdetermines in good faith that such liquidation, consolidates dissolution or liquidates with or into a Loan Party change in which such Loan Party form is in the surviving entity, such Loan Party shall expressly assume all the obligations best interests of the Borrower under this Agreement and is not materially disadvantageous to the other Loan Documents to which the Borrower is a party and Lenders or (iiv) any Subsidiary may merge, consolidate merge or liquidate effect a Delaware LLC Division with or into any other Subsidiary person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a transaction in Subsidiary, which the surviving entity is a Subsidiary and no Person other than shall be a Loan Party 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 receives (upon voluntary liquidation or otherwise); provided, that any considerationsales, 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 6.07 and shall be included in Section 6.05(g);
(d) the Loan Parties Sale and the Subsidiaries may 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 Reorganization TransactionsLease-Back Transactions permitted by Section 6.03;
(e) the Loan Parties Investments permitted by Section 6.04, Permitted Liens, dividends permitted by Section 6.06 and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; andcapital expenditures;
(f) the Loan Parties sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases, Delaware LLC Division or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that (i) no Default or Event of Default exists or would result therefrom and (ii) the Subsidiaries may enter into mergers and consolidations Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger, consolidation or Delaware LLC Division in order to effect asset acquisitionsa Permitted Business Acquisition); provided, that following any such merger, consolidation or Delaware LLC Division (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;
(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 if the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(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 merges 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 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 consolidates with all assets exchanged in reliance upon this clause (m) shall not exceed, in any other Person and if the Person formed by or surviving any such merger or consolidation is not fiscal year of the Borrower, the greater of $150 million and 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Person 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;
(n) the sale of assets described on Schedule 6.05;
(o) the Business Combination and the Closing Date Assignment; and
(p) the purchase and sale or other transfer of Receivables Assets in connection with a Permitted Supplier Finance Facility. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets shall expressly assume all be permitted by this Section 6.05 (other than (x) sales, transfers, leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c) of this Section 6.05 and (y) the obligations transactions permitted by paragraph (e) of this Section 6.05 (solely with respect to Section 6.04(bb)) unless such disposition is for fair market value and (ii) no sale, transfer or other disposition of assets in excess of $25.0 million shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75.0% 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 under this Agreement and the other Loan Documents to which or any Subsidiary of the Borrower is a party; provided (other than liabilities that in are by their terms subordinated to the case Obligations) that are assumed by the transferee of any transaction under clauses 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 (c) that is at that time outstanding, not to exceed the greater of $46.0 million and 10.0% of EBITDA as of the end of the most recently completed Test Period at the time of the receipt of such Designated Non-Cash Consideration (d) above, and if with the transaction has a fair market value of $25,000,000 or more, clauses (e) each item of Designated Non-Cash Consideration being measured at the time received and (f) above, the Loan Parties are in Pro Forma Compliance immediately after without giving effect to subsequent changes in value) shall be deemed to be cash. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than the Borrower or any Subsidiary, such transactionCollateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence 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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (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:
that (ai) the Guarantors Borrower and the Subsidiaries any Subsidiary may purchase and sell assets or properties inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (iA) any Loan Party or Subsidiary wholly owned subsidiary may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiB) any Subsidiary wholly owned subsidiary may merge, merge into or consolidate or liquidate with or into any other Subsidiary wholly owned subsidiary in a transaction in which the surviving entity is a Subsidiary wholly owned subsidiary and no Person 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 or Party, the surviving entity of such transaction shall be a Subsidiary receives any consideration;
Loan Party) and (dC) the Loan Parties Borrower and the Subsidiaries may effect sales and transfers of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors make Permitted Acquisitions (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;through mergers of Subsidiaries).
(eb) the Loan Parties and the Subsidiaries may sellMake any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges or consolidates with this paragraph (b) during any other Person and if the Person formed by or surviving any such merger or consolidation is fiscal year shall not the Borrower, such Person shall expressly assume all the obligations exceed an amount equal to 7.5% of the Borrower under this Agreement and Proved PV-10% as of the other Loan Documents end of the fiscal year most recently ended prior to the date of such sale, transfer, lease or disposition for which a Reserve Report has been delivered, calculated on a pro forma basis for acquisitions consummated since the Borrower is a party; provided that end of such fiscal year in the case manner specified in the definition of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction"Proved PV-10%".
Appears in 1 contract
Samples: Second Lien Credit Agreement (Pacific Energy Resources LTD)
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Subsidiary 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 thatthat this Section shall not prohibit:
(ai) the Guarantors purchase and sale of inventory in the Subsidiaries may sell assets ordinary course of business by the Borrower or properties 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 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 Guarantors time thereof and the Subsidiaries may sellimmediately after giving effect thereto no Event of Default shall have occurred and be continuing, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) the merger of any Loan Party Subsidiary into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary may merge, consolidate into or liquidate with or into a any Subsidiary Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving resulting entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration;
(d) the Loan Parties and the Subsidiaries may effect sales and transfers of assets and mergersand, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of each of clauses (i) and (ii), no person other than a Borrower or Subsidiary Loan Party receives any transaction under clauses consideration, (iii) 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 (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than the 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) and sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (d) aboveupon voluntary liquidation or otherwise); provided that any sales, and if the transaction has transfers, leases or other dispositions by a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are Party to a Subsidiary that is not a Subsidiary Loan Party shall be made in Pro Forma Compliance immediately after giving effect to such transaction.compliance with Section
Appears in 1 contract
Samples: Credit Agreement (Hexion Specialty Chemicals, 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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower or less than all the Equity Interests of any Subsidiary 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:
that (ai) the Guarantors Borrower, any Subsidiary and the Subsidiaries any Affiliated Guarantor may purchase and sell assets or properties swap inventory in the ordinary course of business;
business and (bii) if at the Guarantors time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (iw) any Loan Party or wholly owned Subsidiary Guarantor may merge, consolidate or liquidate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iix) any wholly owned Subsidiary Guarantor may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary Guarantor in a transaction in which the surviving entity is a wholly owned Subsidiary Guarantor and no Person other than the Borrower, a wholly owned Subsidiary Guarantor receives any consideration, (y) any Affiliated Guarantor may merge into or consolidate with any other Affiliated Guarantor in a transaction in which the surviving entity is an Affiliated Guarantor and no Person other than the Borrower, a wholly owned Subsidiary Guarantor or an Affiliated receives any consideration and (y) any Loan Party may purchase, lease or otherwise acquire all or substantially all of the assets of any other Loan Party or a Subsidiary receives sell, transfer, lease or dispose of all or substantially all of its assets to any consideration;other Loan Party.
(db) Other than in the Loan Parties and the Subsidiaries may effect sales and transfers case of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a GuarantorA) mergers effected pursuant to Section 6.04(a)(ii) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(eB) the Loan Parties and the Subsidiaries may sellany Excluded Asset Sales, transfer or (x), make any Asset Sale otherwise dispose permitted under Section 6.04(a) unless (i) such Asset Sale is for consideration at least 75% of any assets or property for cash or other which is cash, (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) (I) the Loan Parties fair market value of all assets sold, transferred, leased or disposed of pursuant to this Section 6.04(b) (other than Asset Sales by any LandCo Subsidiary) shall not exceed $5,000,000 in the aggregate or (II) if such Asset Sale is effected by any LandCo Subsidiary, the Net Cash Proceeds resulting therefrom are applied in accordance with the Orders, the Existing Las Vegas Credit Agreement and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitionsprovisions of Section 2.14(a), if applicable; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations foregoing restrictions of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (ci) and (dii) above, of this Section 6.04(b) shall not apply to transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority that has condemned such property. This Section 6.04 shall not be construed as a restriction upon the hypothecation or transfer of the equity securities of any gaming licensee unless and if the transaction has a value until all required approvals of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionrelevant Gaming Authorities have been obtained.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (JMBS Casino LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) or any Equity Interest 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:
(a) the Guarantors any Loan Party may purchase and the Subsidiaries may sell assets or properties inventory, fixtures and equipment in the ordinary course of businessbusiness consistent with past practices;
(b) the Guarantors and the Subsidiaries any Loan Party may sell, transfer, lease sell or otherwise dispose of damaged, obsolete or worn out property, in each case in the ordinary course of business and consistent with past practice, provided that the aggregate Fair Market Value of all such assets disposed of pursuant to this clause (b) in any assets or property in transactions only among the Guarantors and the Subsidiariesfiscal year shall not exceed $5,000,000;
(ic) Any Loan Party may exchange real property, fixtures and improvements for other real property, fixtures and improvements, provided that any consideration (other than real property, fixtures and improvements) received by any Loan Party or Subsidiary may merge, consolidate or liquidate in connection with or into a such exchanges is received by such Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any considerationcash;
(d) the Loan Parties and the Subsidiaries may effect sales and transfers of assets and mergerssubject to Section 7.07, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries Subsidiary may sell, transfer or otherwise dispose of any of its assets to any Loan Party;
(e) any Loan Party may sell, transfer, sell a franchise in or otherwise dispose of restaurants or property (including real property, improvements, fixtures and equipment) relating to current or former restaurants of such person (such restaurants and property are collectively referred to as “Restaurant Businesses”) for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value Fair Market Value of the Restaurant Businesses sold, transferred or otherwise disposed of, provided that the aggregate Fair Market Value of all assets disposed of pursuant to this clause (e) shall not exceed $25,000,000 in any fiscal year;
(i) any Loan Party may merge or consolidate with or transfer all or substantially all of its assets to any other Loan Party and (ii) Holdings may be dissolved upon the redemption of all 10% Senior Notes;
(g) any Loan Party may enter into a Refranchising Asset Sale;
(h) any Loan Party may purchase, lease or otherwise acquire (in one transaction or a series of transactions) the assets of any other person in connection with its application or reinvestment of Net Cash Proceeds from any Reduction Event to the extent that such Reduction Event or the application or reinvestment of such proceeds does not result in a mandatory prepayment pursuant to Section 2.05(b);
(i) in addition to any other purchases permitted under this Section 7.04, any Loan Party may purchase tangible assets or propertyuseful in the conduct of restaurant operations and other business currently conducted by it and business activities reasonably incidental thereto with a Fair Market Value of up to $ 5,000,000 during any 12 month period following the Closing Date; and
(fj) the (i) any Loan Parties Party may effect any transaction permitted by Section 7.03(h), Section 7.03(i) and the Subsidiaries Section 7.03(k), (ii) any Loan Party may effect any transaction permitted by Section 7.02(j) and (iii) any Loan Party or any Subsidiary of a Loan Party may enter into mergers and consolidations to effect asset acquisitionssale-leaseback transactions permitted by Section 7.16; provided provided, however, that if the Borrower merges any sale, transfer, exchange or consolidates with any other Person and if the Person formed disposition of assets (x) permitted by or surviving any such merger or consolidation is not the Borrowerclause (b), such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above), and if the transaction has a value of $25,000,000 or more, clauses (e) above shall not be permitted unless such disposition is for Fair Market Value and (fy) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionshall be for at least 60% cash consideration.
Appears in 1 contract
Samples: Credit Agreement (Dennys 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 any substantial part of the consolidated substantially all its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) or any of the Equity Interests of any subsidiary owned by it, except that:
(a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business;
(b) the Guarantors and the Subsidiaries may sell, transferpurchase, lease or otherwise dispose acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any assets other person, except that if at the time thereof and immediately after giving effect thereto no Default or property in transactions only among the Guarantors Event of Default shall have occurred and the Subsidiaries;
be continuing (ix) any Loan Party wholly-owned Subsidiary (other than Corel Subsidiary) may transfer all or Subsidiary may merge, consolidate substantially all of its assets to or liquidate with or merge into a Loan Party Borrower in a transaction in which such Loan Party Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any wholly-owned Subsidiary may merge, transfer all or substantially all of its assets to or merge into or consolidate or liquidate with or into any other wholly-owned Subsidiary in a transaction in which the surviving entity is a wholly-owned Subsidiary and no Person person other than a Borrower or a wholly-owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Grantor Loan Party or Loan Party, the surviving entity of such transaction shall be a Subsidiary receives any consideration;
Grantor Loan Party or Loan Party, respectively) and (dz) the Loan Parties Borrowers and the Subsidiaries may 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 make Permitted Reorganization Transactions;Acquisitions.
(eb) Engage in any Asset Sale unless (i) such Asset Sale is for consideration at least 75% of which is cash, (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (iii) the Loan Parties fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph shall not exceed $10,000,000 in any fiscal year, provided that (x) the Borrower shall provide prior written notice to the Administrative Agent in connection with any Asset Sales if the fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph exceeds $5,000,000 in any fiscal year and (y) the Subsidiaries may Net Cash Proceeds of any such Asset Sales are applied as set forth in Section 2.24, provided further that the Borrower shall not, nor will it cause or permit any Subsidiary to, sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionKey Software Program.
Appears in 1 contract
Samples: Credit Agreement (Corel Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired) (including, in each case, pursuant to a Delaware LLC Division), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower 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 or any division, unit or business of any person, except thatthat this Section shall not prohibit:
(ai) the Guarantors purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary and the Subsidiaries may sell assets sale of receivables by any Foreign Subsidiary pursuant to non-recourse factoring arrangements in the ordinary course of business of such Foreign Subsidiary, (ii) the acquisition or properties 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 Guarantors time thereof and the Subsidiaries may sellimmediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) the merger or Delaware LLC Division of any Loan Party Subsidiary into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger, consolidation or Delaware LLC Division of any Subsidiary may merge, consolidate into or liquidate with or into a any Subsidiary Loan Party in a transaction in which such the surviving or resulting entity is a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger, consolidation or Delaware LLC Division of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party, (iv) the surviving entity; provided that liquidation or dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Borrower mergesdetermines in good faith that such liquidation, consolidates dissolution or liquidates with or into a Loan Party change in which such Loan Party form is in the surviving entity, such Loan Party shall expressly assume all the obligations best interests of the Borrower under this Agreement and is not materially disadvantageous to the other Loan Documents to which the Borrower is a party and Lenders or (iiv) any Subsidiary may merge, consolidate merge or liquidate effect a Delaware LLC Division with or into any other Subsidiary person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a transaction in Subsidiary, which the surviving entity is a Subsidiary and no Person other than shall be a Loan Party 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 receives (upon voluntary liquidation or otherwise); provided, that any considerationsales, 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 6.07 and shall be included in Section 6.05(g);
(d) the Loan Parties Sale and the Subsidiaries may 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 Reorganization TransactionsLease-Back Transactions permitted by Section 6.03;
(e) the Loan Parties Investments permitted by Section 6.04, Permitted Liens, Dividends permitted by Section 6.06 and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; andcapital expenditures;
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations sale of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that defaulted receivables in the case ordinary course of any transaction under clauses business and not as part of an accounts receivables financing transaction;
(cg) and sales, transfers, leases, Delaware LLC Division or other dispositions of assets not otherwise permitted by this Section 6.05 (dor required to be included in this clause (g) abovepursuant to Section 6.05(c)); provided, and if the transaction has a value of $25,000,000 or more, clauses that (ei) and (fA) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionsale, transfer, lease, Delaware LLC Division or other disposition of assets, the application of proceeds thereof, the assumption and incurrence of any Indebtedness and any related transactions, the Total Net First Lien Leverage Ratio of the Borrower on a Pro Forma Basis would be equal to or less than 4.00 to 1.00 or (B) if otherwise, then the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased, Delaware LLC Division or otherwise disposed of in reliance upon this clause (g)(i)(B) 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 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 and (iii) the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger, consolidation or Delaware LLC Division in order to effect a Permitted Business Acquisition); provided, that following any such merger, consolidation or Delaware LLC Division (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;
(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);
(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) (i) after giving effect to such exchange, the application of proceeds thereof, the assumption and incurrence of any Indebtedness and any related transactions, the Total Net First Lien Leverage Ratio of the Borrower on a Pro Forma Basis would be equal to or less than 4.00 to 1.00 or (ii) if otherwise, the aggregate gross consideration (including exchange assets, other noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this clause (m) 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 5.04; (B) no Default or Event of Default exists or would result therefrom;
(n) the sale of assets described on Schedule 6.05;
(o) the Acquisition; and
(p) the purchase and sale or other transfer of Receivables Assets in connection with a Permitted Supplier Finance Facility. 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 and paragraph (e) of this Section 6.05 (solely with respect to Section 6.04(bb)) unless such disposition is for fair market value 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 other Designated Non-Cash Consideration received pursuant to this clause (c) 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) shall be deemed to be cash. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than Holdings, the Borrower or any Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.
Appears in 1 contract
Samples: Second Lien Bridge Credit Agreement (Berry Global Group 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 or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors any Borrower (whether now owned or hereafter acquired)) or any Equity Interest 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:
that (ai) the Guarantors Borrowers and the Subsidiaries any Subsidiary may purchase and sell assets or properties Inventory in the ordinary course of business;
, (bii) the Guarantors Borrowers or any wholly owned Subsidiary may make acquisitions permitted under Section 6.04 above, (iii) if at the time thereof and the Subsidiaries may sell, transfer, lease immediately after giving effect thereto no Event of Default or otherwise dispose of any assets or property in transactions only among the Guarantors Default shall have occurred and the Subsidiaries;
be continuing (ix) any Loan Party or wholly owned Subsidiary may merge, consolidate or liquidate with or merge into a Loan Party Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party corporation and (iiy) any wholly owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party Borrower or a wholly owned Subsidiary receives any consideration;, PROVIDED that if any such merger described in this clause (y) shall involve a Domestic Subsidiary, the surviving entity of such merger shall be a Domestic Subsidiary; and (iv) any Subsidiary which is not a Material Subsidiary may be wound up and dissolved.
(db) the Loan Parties and the Subsidiaries may effect sales and transfers Engage in any Asset Sale unless (i) such Asset Sale is for consideration at least 85% of assets and mergerswhich is cash, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantorii) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of, (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges this paragraph (b) shall not exceed (i) $5,000,000 in any fiscal year or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that (ii) $10,000,000 in the case of any transaction under clauses (c) aggregate, and (div) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties Net Cash Proceeds are in Pro Forma Compliance immediately after giving effect to such transactionapplied as required by subsection 2.14(c).
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 any substantial part of substantially all the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)) of the Borrower and the Subsidiaries, taken as a whole, 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 substantially all of the assets of any other Person, except that:
(a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business;
(b) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate liquidate or liquidate with dissolve 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; and
(ii) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (x) any Wholly Owned Subsidiary may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity; provided that if the Borrower mergescorporation, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (iiy) any Wholly Owned Subsidiary may merge, merge into or consolidate or liquidate with or into any other Wholly Owned Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary and no Person other than a Loan Party the Borrower or a Wholly Owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (z) the Loan Parties Borrower and the Subsidiaries may effect sales and transfers of assets and mergers, consolidations, dissolutions and liquidations involving the Guarantors make Permitted Acquisitions (including by way of merger or consolidation, so long as any Eligible Additional Guarantor that becomes a Guarantor) and Loan Party party thereto shall be the Subsidiaries in order to effect Permitted Reorganization Transactions;surviving entity).; and
(eiii) the Loan Parties and Borrower may consummate the Subsidiaries may sellHotspot Acquisition.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, transfer or otherwise dispose of any assets or property for cash or other (ii) such consideration reasonably determined by the Loan Parties to be in an amount is at least equal to the fair market value of such the assets being sold, transferred, leased or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed $25,000,000 or more, clauses 50,000,000 (eincreasing on and after the Acquisition Closing Date to $60,000,000) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionany fiscal year.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated its assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired), or 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 or any division, unit or business of any other person, except that:that this Section 7.05 shall not prohibit the following (collectively, “Permitted Dispositions”):
(a) (i) the Guarantors purchase and sale of inventory in the ordinary course of 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 shall have occurred and be continuing or would result therefrom, (i) the merger, consolidation or amalgamation of any Subsidiary into (or with) Borrower Holdco or the Lead Borrower in a transaction in which Borrower Holdco or the Lead Borrower, as applicable, is the survivor, (ii) the merger, consolidation or amalgamation of any Subsidiary into or with any Subsidiary of Borrower Holdco that is a Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary of Borrower Holdco that is a Loan Party and, in the case of each of clauses (i) and (ii), no person other than Borrower Holdco, the Lead Borrower or another Loan Party receives any consideration, (iii) the merger, consolidation or amalgamation of any Subsidiary that is not a Loan Party into or with any other Subsidiary that is not a Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Excluded Subsidiary if the Lead Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Lead Borrower and is not materially disadvantageous to the Lenders or (v) the merger, consolidation or amalgamation of any Subsidiary of Borrower Holdco (other than the Lead Borrower) 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 Subsidiary of Borrower Holdco that is a Loan 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 6.01;
(c) sales, transfers, leases or other Dispositions to Borrower Holdco or any of its Subsidiaries may sell assets (upon voluntary liquidation or properties otherwise);
(d) dispositions by the Borrowers to CIT of Accounts of the Borrowers, in accordance with the terms and conditions of the CIT Deferred Purchase Factoring Agreement;
(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) Permitted Business Acquisitions;
(h) leases, nonexclusive licenses, or nonexclusive subleases or sublicenses of any real or personal property in the ordinary course of business;
(bi) Dispositions that satisfy both of the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
following requirements: (i) any such Loan Party or such Subsidiary may mergereceives consideration (including by way of relief from, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into by any other Subsidiary in a transaction in which Person assuming responsibility for, any liabilities, contingent or otherwise) at the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration;
(d) the Loan Parties and the Subsidiaries may effect sales and transfers time 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount such Disposition at least equal to the fair market value of the shares and assets subject to such assets or property; and
Disposition, as such fair market value (fon the date a legally binding commitment for such Disposition was entered into) may be determined in good faith by the Loan Parties Lead Borrower and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that (ii) in the case of any transaction under clauses Disposition (cor series of related Dispositions) and having a fair market value (don the date a legally binding commitment for such Disposition was entered into) above, and if the transaction has a value of $25,000,000 or more, clauses at least 75.00% of the consideration therefor (eexcluding, in the case of a Disposition (or series of related Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness) and received by such Loan Party or such Subsidiary is in the form of cash; provided that if (fx) abovemore than five percent (5%) of assets of the type which may be included in the Borrowing Base (regardless of eligibility) are Disposed of pursuant to a single transaction or a series of related transactions under this Section 7.05(i), the Loan Parties are in Pro Forma Compliance immediately Borrowers shall deliver an updated Borrowing Base Certificate to the Agent, prepared on a pro forma basis after giving effect to such transactionDisposition and/or (y) more than ten percent (10%) of assets of the type which may be included in the Borrowing Base (regardless of eligibility) are Disposed of pursuant to a single transaction or a series of related transactions under this Section 7.05(i), the Agent shall have the ability to conduct an updated appraisal of the assets included on the Borrowing Base at the expense of the Loan Parties (but which appraisal shall not, for the avoidance of doubt, be counted as one of the appraisals performed pursuant to Section 6.07 hereof for purposes of determining reimbursement of the costs and expenses thereof by the Loan Parties);
(j) bulk sales or other Dispositions of the Inventory of a Loan Party not in the ordinary course of business in connection with Store closings, at arm’s length; provided, that such Store closures and related Inventory Dispositions shall not exceed (i) in any Fiscal Year of the Parent and its Subsidiaries, 5% of the number of the Loan Parties’ Stores as of the beginning of such Fiscal Year (net of new Store openings) and (ii) in the aggregate from and after the Closing Date, 10% of the number of the Loan Parties’ Stores in existence as of the Closing Date (net of new Store openings); provided, further that all sales of Inventory in connection with Store closings shall be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Agent;
(k) any other Permitted Asset Dispositions; and
(l) the creation or granting of any Lien permitted under this Agreement.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into or consolidate with Neither the Borrower nor any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of Subsidiary (in one transaction or in a series of transactions) will wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of all or any substantial part of the consolidated assets (including by way of a sale its property or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired)assets, except thatexcept:
(a) mergers between the Guarantors Borrower and a Subsidiary or between Subsidiaries;
(b) sales of inventory, marketable securities, receivables owed to a foreign subsidiary and receivables of the Subsidiaries may sell assets Borrower or properties any Subsidiary from export sales, in each case in the ordinary course of business;
(bc) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents sales permitted pursuant to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any considerationSection 6.06;
(d) subject to Section 6.03(e) below, any merger (other than as described in (a) above), consolidation, dissolution or liquidation; provided, however, that (I) immediately prior to and on a Pro Forma Basis after giving effect to such transaction no Default or Event of Default has occurred or is continuing, (ii) if such transaction involves a Person other than the Loan Parties Borrower and its Subsidiaries, the Subsidiaries may effect sales Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such transaction complies with the requirements set forth in this section and transfers of assets and mergers(iii) if such transaction involves the Borrower, consolidations, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and Borrower is the Subsidiaries in order to effect Permitted Reorganization Transactionssurviving entity;
(e) a disposition of less than substantially all of the Loan Parties assets of the Borrower and its Subsidiaries, taken as a whole, (i) for consideration which represents fair market value (as reasonably determined in good faith by the Subsidiaries may sellBorrower's Board of Directors) or, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably at a price determined by the Loan Parties Board of Directors of the Borrower to be in an amount at least equal the best interests of the Borrower under circumstances where the Board deems a sale on terms other than fair market value to be in the fair value best interest of the Borrower, (ii) immediately prior to and on a Pro Forma Basis after giving effect thereto, no Event of Default or Default shall have occurred and be continuing and (iii) if the transaction involves consideration of $20,000,000 or more, the Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such assets or propertytransaction complies with the requirements set forth in this section; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations acquisitions of an interest in any business from any Person (whether pursuant to effect asset acquisitionsa merger, an acquisition of stock, assets, a business unit or otherwise); provided that (i) immediately prior to and on a Pro Forma Basis after giving effect thereto, no Event of Default or Default shall have occurred and be continuing and (ii) if the Borrower merges transaction involves consideration equal to or consolidates with any other Person and if in excess of $10,000,000, the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person Administrative Agent shall expressly assume all the obligations promptly receive a certificate of a Financial Officer of the Borrower under confirming that such transaction complies with the requirements set forth in this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionsection.
Appears in 1 contract
Samples: Competitive Advance, Revolving Credit and Guaranty Agreement (Dentsply International Inc /De/)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge Enter into any transaction of merger or consolidate with consolidation or liquidate, wind-up or dissolve itself (or suffer any other Personliquidation or dissolution), or permit any other Person to merge into or consolidate with itconvey, or sell, transferlease or sub-lease (as lessor or sublessor), lease license or sub-license (as licensor or sub-licensor), exchange, transfer or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its business, assets or property of any Schedule 4, Negative Covenants kind whatsoever, including the consolidated assets (including by way Equity Interests of a sale Subsidiary, whether real, personal or transfer of stock of Subsidiaries) of the Guarantors mixed and whether tangible or intangible (whether now owned or hereafter acquired)) 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 thatfor:
(a) the Guarantors sale by Tensar and the its Subsidiaries may sell assets or properties of inventory in the ordinary course of business;
(b) the Guarantors sale or discount by Tensar or any of its Subsidiaries in each case without recourse and in the Subsidiaries may sellordinary course of business of overdue accounts receivable arising in the ordinary course of business, transfer, lease but only in connection with the compromise or otherwise dispose collection thereof consistent with customary industry practice (and not as part of any assets bulk sale or property in transactions only among the Guarantors and the Subsidiariesfinancing transaction);
(ic) the disposition of obsolete or worn out assets, scrap and Permitted Investments in the ordinary course of business;
(d) the NAG Sale-Leaseback provided that the proceeds of such sale are used to pay in full the purchase price for the NAG Facility;
(e) the sale of assets on the Effective Date under the Asset Purchase Agreement;
(f) the purchase and sale of commodities by Tensar under this Agreement;
(g) the purchase and sale of commodities by Tensar Holdings pursuant to the Tensar Holdings Commodities Purchase Agreement and by Tensar pursuant to the Second Lien Commodities Purchase Facility Agreement; and
(h) 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 merger or consolidation of any Loan Party wholly owned Subsidiary into or Subsidiary may merge, consolidate or liquidate with or into a Loan Party Tensar in a transaction in which such Loan Party Tensar is the surviving entity; provided that if corporation, (x) the Borrower merges, consolidates merger or liquidates consolidation of any wholly owned Subsidiary into or with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no Person person other than a Loan Party Tensar or a wholly owned Subsidiary receives any consideration;
consideration (dprovided that if any party to any such transaction is (A) a Tensar Party, the surviving entity of such transaction shall be a Tensar Party and (B) a Domestic Subsidiary, the surviving entity of such transaction shall be a Domestic Subsidiary), (y) Permitted Acquisitions by Tensar or any of its Subsidiaries (otherwise permitted by Section 1.04(h) of this Schedule 4), and (z) the Loan Parties and the Subsidiaries may effect sales and transfers of assets and mergerssale, consolidationslease, dissolutions and liquidations involving the Guarantors (including any Eligible Additional Guarantor that becomes a Guarantor) and the Subsidiaries in order to effect Permitted Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sellsub-lease, transfer license, sub-license or otherwise dispose other disposition of any part of its business, assets or property (except any Equity Interests of Tensar) so long as (i) such Asset Sale is for consideration at least 80% of which is cash or other (and no portion of the remaining consideration reasonably determined by the Loan Parties to shall be in an amount the form of Financing Obligations of Tensar any of its Subsidiaries), (ii) such consideration is at least equal to the fair market value of such the assets being sold, transferred, leased, licensed or property; and
disposed of and (fiii) the Loan Parties and the Subsidiaries may enter into mergers and consolidations fair market value of all assets sold, transferred, leased, licensed or disposed of pursuant to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is this clause (z) shall not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that exceed $40,000,000 in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transactionaggregate.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. 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 any substantial part of the consolidated assets (including by way of a sale or transfer of stock of Subsidiaries) of the Guarantors (whether now owned or hereafter acquired), except that:
(a) the Guarantors and the Subsidiaries may sell assets or properties in the ordinary course of business;
(b) the Guarantors and the Subsidiaries may sell, transfer, lease or otherwise dispose of any assets or property in transactions only among the Guarantors and the Subsidiaries;
(i) any Loan Party or Subsidiary may merge, consolidate or liquidate with or into a Loan Party in a transaction in which such Loan Party is the surviving entity; provided that if the Borrower merges, consolidates or liquidates with or into a Loan Party in which such Loan Party is the surviving entity, such Loan Party shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party entity and (ii) any Subsidiary may merge, consolidate or liquidate with or into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than a Loan Party or a Subsidiary receives any consideration;
(d) the Loan Parties and the Subsidiaries may 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 Reorganization Transactions;
(e) the Loan Parties and the Subsidiaries may sell, transfer or otherwise dispose of any assets or property for cash or other consideration reasonably determined by the Loan Parties to be in an amount at least equal to the fair value of such assets or property; and
(f) the Loan Parties and the Subsidiaries may enter into mergers and consolidations to effect asset acquisitions; provided that if the Borrower merges or consolidates with any other Person and if the Person formed by or surviving any such merger or consolidation is not the Borrower, such Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party; provided that in the case of any transaction under clauses (c) and (d) above, and if the transaction has a value of $25,000,000 or more, clauses (e) and (f) above, the Loan Parties are in Pro Forma Compliance immediately after giving effect to such transaction.
Appears in 1 contract
