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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit: (a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10; (c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06; (f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b); (h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation; (i) leases, charters or 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 property in the ordinary course of business; (j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b); (k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”; (l) [reserved]; (m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b); (n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and (o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 3 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into into, amalgamate with or consolidate with any other person, or permit any other person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of related transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired)) in excess of $10,000,000, or issue, sell, transfer or otherwise dispose Dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part substantially all of the assets of any other person or division or line of business of a person, except that this Section 6.05 shall not prohibit:
(a) (i) the purchase and Disposition of inventory in the ordinary course of business by Parent or any disposal Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Company Parent or any Subsidiary or, with respect to operating leases, otherwise for Fair Market Value on market terms (as determined in good faith by Parent), (iii) the Disposition of an asset surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) business by any Loan Party or Subsidiary of all Parent or any substantial part Subsidiary or (iv) the Disposition of the assets or other property of any other person, so long as such acquisition is Permitted Investments in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger merger, amalgamation or consolidation of any Subsidiary (other than with or into the Co-Borrower) into a Parent or another Borrower in a transaction in which the Parent or such other Borrower is the survivor, (ii) the merger merger, amalgamation or consolidation of any Subsidiary (other than the Co-a Borrower) with or into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Guarantor, Guarantor and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any considerationconsideration (unless otherwise permitted by Section 6.04), (iii) the merger merger, amalgamation or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Borrower or a Guarantor with or into or with any other Subsidiary that is not a Subsidiary Borrower or a Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company (x) Parent determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Parent and is not materially disadvantageous to Lendersthe Lenders and (y) the same meets the requirements contained in the proviso to Section 5.01(a), (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-a Borrower) may merge merge, amalgamate or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a SubsidiarySubsidiary (unless otherwise permitted by Section 6.04 (other than Section 6.04(m)(ii))), which shall be a Loan Party if the merging merging, amalgamating or consolidating Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the any applicable requirements of Section 5.105.10 or (vi) any Subsidiary (other than a Borrower) may merge, amalgamate or consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to this Section 6.05;
(c) sales, transfers, leases Dispositions to Parent or other dispositions to a Subsidiary; provided that any Dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan Party in reliance on this clause (c) shall be made in compliance with Section 6.04;
(d) Dispositions of any property subject to a Permitted Sale and Lease-Back Transactions permitted by Section 6.03Transaction;
(e) (i) Investments permitted by Section 6.046.04 (other than Section 6.04(m)(ii)), Permitted Liens, and dividends, distributions and other payments Restricted Payments permitted by Section 6.066.06 and (ii) the Transactions to the extent otherwise prohibited by this Section 6.05;
(f) the sale of defaulted receivables discount or sale, in each case without recourse and in the ordinary course of business business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of an accounts receivables any bulk sale or financing transactionof receivables);
(g) sales, transfers, leases or other dispositions Dispositions of assets not otherwise permitted by this Section 6.05 assets; provided that (or required to be included in this clause (gi) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof thereof, if any, are applied in accordance with Section 2.11(b)) to the extent required thereby, (ii) any such Dispositions shall comply with the final sentence of this Section 6.05 and (iii) no Borrower may dispose of all or substantially all of the assets of such Borrower and its Subsidiaries taken as a whole pursuant to this clause (g) unless the surviving entity is an entity organized or existing under the laws of a Designated Jurisdiction and expressly assumes all obligations of the relevant Borrower under the Loan Documents; provided, further, that, notwithstanding anything to the contrary, any entity that succeeds Jazz Lux with respect to the Term Loans shall be an entity organized or existing under the laws of Luxembourg, the United States, any state thereof or the District of Columbia or such other jurisdiction as the Parent and the Administrative Agent may agree;
(h) Permitted Business Acquisitions (including any merger merger, consolidation or consolidation amalgamation in order to effect a Permitted Business Acquisition); providedprovided that, that following any such merger merger, consolidation or consolidation amalgamation involving a Borrower, such Borrower is the surviving corporationentity or the requirements of Section 6.05(n) are otherwise complied with;
(i) leases, charters or 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 Dispositions of inventory or Dispositions or abandonment of the Company or any Subsidiary Intellectual Property of Parent and its Subsidiaries determined in good faith by the management of the Company Parent to be no longer economically practicable to maintain or useful or necessary in the operation of the business of Parent or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reserved];
(l) the purchase and Disposition (including by capital contribution) of Permitted Receivables Facility Assets including pursuant to Qualified Receivables Facilities;
(m) any exchange or swap of assets (other than cash and Permitted Investments) for services and/or other assets (other than cash and Permitted Investments) of comparable or greater valuevalue or usefulness to the business of Parent and the Subsidiaries as a whole, determined in good faith by the management of Parent; provided that the Fair Market Value of any such exchanges or swaps shall not, in the aggregate, exceed $75,000,000 in any fiscal year; and
(n) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary or any other person may be merged, amalgamated or consolidated with or into Parent or another Borrower; provided that (iA) at least [*]% of Parent or such other Borrower shall be the consideration received by surviving entity or (B) if the transferor consists of assets that will be used in a business surviving entity is not Parent or business activity permitted hereundersuch other Borrower (such other person, the “Successor Borrower”), (ii1) the Successor Borrower shall be an entity organized or existing under the laws of any Designated Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of Parent or the other applicable Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the event of an exchange with Administrative Agent, (3) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a fair market value in excess of supplement to the greater of Guarantee Agreement, as applicable, confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its guarantee as reaffirmed pursuant to clause (3), (5) [reserved] and (6) the Successor Borrower shall have delivered to the Administrative Agent (x) $[*] a certificate of a Responsible Officer stating that such merger, amalgamation or consolidation does not violate this Agreement or any other Loan Document and (y) [*]% if requested by the Administrative Agent, an opinion of Consolidated Total Assets as of the end of the fiscal quarter immediately prior counsel to the date effect that such merger, amalgamation or consolidation does not violate this Agreement or any other Loan Document and covering such other matters as are contemplated by the Collateral and Guarantee Requirement to be covered in opinions of such exchange for which financial statements have been delivered pursuant to Section 5.04counsel (it being understood that if the foregoing are satisfied, the Administrative Agent shall have received a certificate from a Responsible Officer of Successor Xxxxxxxx will succeed to, and be substituted for, the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Companyrelevant Borrower under this Agreement); provided, further, that (A) the aggregate gross consideration (including exchange assetsthat, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior notwithstanding anything to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04contrary, (B) no Default or Event of Default exists or would result therefrom, (C) any Borrower that succeeds Jazz Lux as Borrower with respect to any such exchange with aggregate gross consideration in excess the Term Loans shall be an entity organized or existing under the laws of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect theretoLuxembourg, the Company shall be in Pro Forma ComplianceUnited States, any state thereof or the District of Columbia or such other jurisdiction as the Parent and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowedAdministrative Agent may agree. Notwithstanding anything to the contrary contained in Section 6.05 abovethis Section 6.05, no Disposition of assets under Section 6.05(g) shall in each case be permitted unless (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition Disposition is for fair market valueFair Market Value, and (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% of the proceeds of such Disposition (except to Loan Parties) consist of cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash considerationPermitted Investments; provided that the provisions of this clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value Fair Market Value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement25,000,000; provided, further, that for purposes of this clause (iiiii), each of the following shall be deemed to be cash: (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the CompanyParent’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is are assumed by the transferee of any such assets shall be deemed to be cashor are otherwise cancelled in connection with such transaction, (b) any notes or other obligations or other securities or assets received by the Company Parent or such Subsidiary from the transferee that are converted or capable of being converted by the Company Parent or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company Parent or any of its Subsidiaries in such Disposition or any series of related Dispositions, having an aggregate fair market value (as determined in good faith by the Company), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, Fair Market Value not to exceed exceed, in the aggregate, the greater of $[*] million 300,000,000 and [*]3.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 when received (with the fair market value 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).
Appears in 3 contracts
Samples: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired)assets, or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section shall 6.05 will not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b1) if at the time thereof and immediately after giving effect thereto no Event of Default shall have has occurred and be is continuing or would result therefrom, :
(ia) the merger merger, consolidation or amalgamation of any Restricted Subsidiary into (other than or with) the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, ;
(iib) the merger merger, consolidation or consolidation amalgamation of any Restricted Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party; and, in the case of each of the foregoing clauses (ia) and (iib), no person Person other than a the Borrower or a Subsidiary Guarantor Loan Party receives any consideration, ;
(iiic) the merger merger, consolidation or consolidation amalgamation of any Restricted Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Restricted Subsidiary that is not a Subsidiary GuarantorLoan Party;
(d) any transfer of inventory among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(ive) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary (other than of the Borrower if a Borrower) if Responsible Officer of the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders;
(f) the merger, (v) any disposition to effect the formation consolidation or amalgamation of any Restricted Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition with or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with into any other person Person in order to effect an a Permitted Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall Person will be a Subsidiary, which shall be a Subsidiary Loan Party if the merging merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which which, together with each of their Subsidiaries its Subsidiaries, shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;; or
(g) salesa merger or consolidation of the Borrower into a newly formed entity organized under the laws of the United States of America, transfersany state thereof or the District of Columbia in connection with a Permitted Change of Control; provided that either the Borrower shall be the surviving Person in such transaction or the Person surviving such transaction shall expressly assume, leases 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)); providedan instrument reasonably satisfactory to the Administrative Agent, that all liabilities and obligations of the Net Proceeds thereof are applied in accordance with Section 2.11(b)Borrower under this Agreement and the other Loan Documents to which the Borrower is party;
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m2) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(b) at least 75% of assets shall be permitted by this Section 6.05 the consideration therefor is in the form of cash and Cash Equivalents; and
(other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (cc) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is made for at least 75% cash consideration and fair market value (iii) no sale, transfer or other disposition as determined by a Responsible Officer of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash considerationthe Borrower in good faith); provided that each of the provisions of clause (ii) or (iii) shall not apply following items will be deemed to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that be cash for purposes of clause this Section 6.05(2):
(iii), (ai) the amount of any secured Indebtedness liabilities of the Company Borrower or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party the Restricted Subsidiaries (as shown on the Company’s or such Subsidiary’s most recent balance sheet Required Financial Statements or in the notes thereto) ), other than liabilities that is are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee of any such assets shall be deemed with respect to be cash, the applicable disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(bii) any notes or other obligations or other securities or assets received by the Company Borrower or such any Restricted Subsidiary from the such transferee that are converted by the Company Borrower or such Restricted Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and within 180 days following the closing of the applicable disposition; and
(ciii) any Designated Non-Cash Consideration received by in respect of such disposition; provided that the Company or any of its Subsidiaries having an aggregate fair market value (of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of the Borrower in good faith by the Company)faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ciii) that is at that time then outstanding, does not to exceed the greater of (A) $[*] 40.0 million and [*](B) 1.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of any such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory or goods in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale or other disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) so long as no Event of Default exists or would result therefrom, Specified Sale and Lease-Back Transactions provided that, (x) such dispositions shall be deemed for fair market value in a bona fide arm’s length transaction (as determined in the good faith judgment of the Borrower) and (y) the applicable Specified Sale and Lease-Back Net Proceeds thereof are applied in accordance with Section 2.08(6);
(5) Investments permitted by Section 6.04, (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition), provided, that, following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving corporation;
(6) Permitted Liens;
(7) Restricted Payments permitted by Section 6.06;
(8) the sale or discount of overdue or defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(9) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(10) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be cashno longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary;
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral; and
(13) sales or other dispositions by the Borrower or any Restricted Subsidiary of assets in connection with the closing or sale of a Store (including a factory Store) in the ordinary course of business of the Borrower and its Subsidiaries, which consist of leasehold interests in the premises of such Store, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such Store; provided that as to each and all such sales and closings, (A) no Event of Default shall result therefrom and (B) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction;
(14) bulk sales of 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; and
(15) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of the Borrower in good faith, of not more than $5.0 million. 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 Guarantor, such Collateral will be free and clear of the Liens created by the Loan Documents, and the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower in order to evidence the foregoing, in each case, in accordance with Section 10.18.
Appears in 3 contracts
Samples: First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, 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, including effected pursuant to a Delaware LLC Division) all or any part of its substantially all the assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests ) of the Company or any SubsidiaryU.S. Borrower, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary may (other than x) merge into the Co-Borrower) into a U.S. Borrower in a transaction in which such the U.S. Borrower is the survivorsurviving corporation, (y) liquidate or dissolve into the U.S. Borrower or (z) dispose of all or substantially all its assets to the U.S. Borrower, in each case, so long as no person other than the U.S. Borrower or a wholly owned Subsidiary of any Borrower receives any consideration, (ii) the merger or consolidation of any Subsidiary may (other than the Co-Borrowerx) merge into or consolidate with any other Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any considerationSubsidiary, (iiiy) the merger liquidate or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor dissolve into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (viz) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing dispose of all or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each substantially all of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower its assets to any other Subsidiary, including without limitationin each case, so long as no person other than the U.S. 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, or transferee in, such transaction shall be a Loan Party, and provided further that, if both parties to any such transaction are Loan Parties, but one is Melody or an Investment Subsidiary, the surviving entity of, or transferee in, such transaction may not be Melody or such Investment Subsidiary), (iii) any Immaterial Subsidiary may be liquidated or dissolved and (iv) the U.S. Borrower and the Subsidiaries may make Permitted Vessel Transfer;Acquisitions.
(db) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, engage in any other Asset Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;except:
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of any such Asset Sale the end of the fiscal quarter immediately prior to the date of such exchange consideration for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iiiy) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition consideration is for at least 75% cash consideration; provided that equal to the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] the assets being sold, transferred, leased or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreementdisposed of; provided, furtherhowever, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by Holdings, the Company Borrowers or any such Subsidiaries in respect of its Subsidiaries such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) proviso that is at that time outstanding, not to exceed the greater in excess of $[*] million and [*]% of Consolidated Total Assets as 100,000,000 at the time of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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;
(ii) sales by the U.S. Borrower or the Subsidiaries of brokerage offices, or transfers of the assets of brokerage offices and related assets, to joint ventures in the ordinary course of business;
(iii) sales of Receivables pursuant to a Receivables Securitization; provided that (x) the material terms and conditions and the structure of such Receivables Securitization have been approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed), (y) the aggregate Receivables Securitization Amount outstanding at any time in respect of all Receivables Securitizations entered into by the U.S. Borrower and the Domestic Subsidiaries does not exceed $125,000,000 and (z) the aggregate Receivables Securitization Amount outstanding at any time in respect of all Receivables Securitizations entered into exclusively by the Foreign Subsidiaries does not exceed $125,000,000 (any Receivables Securitization meeting the criteria of this Section 6.04(b)(iii) being referred to herein as a “Permitted Receivables Securitization”); and
(iv) sales by Holdings, the U.S. Borrower and the Subsidiaries to the extent constituting investments permitted under Section 6.03.
Appears in 2 contracts
Samples: Credit Agreement (Cbre Group, Inc.), Amendment and Restatement Agreement (Cbre Group, Inc.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 2 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any the Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a the Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a the Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a the Subsidiary Guarantor into or with any other Subsidiary that is not a the Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a the Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a the Borrower, such the Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a the Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 2 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
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 itit (including by division), or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions, transactions including effected pursuant by allocation of any assets to a Delaware LLC Divisionseries of a limited liability company) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all of any division, unit or any substantial part of the assets business of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary lease, purchase and sale of an asset or other property inventory, in each case, in the ordinary course of business by the Company’s Borrower or Subsidiary’s businessany Subsidiary and sales of Credit Support Assets pursuant to the terms of a Permitted Credit Support Arrangement, (ii) any the acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is asset in the ordinary course of such Loan Party’s business by the Borrower or any Subsidiary’s business, or (iii) the sale or other Dispositions of Permitted Investments by any Loan Party (x) inventory, goods held for sale or Subsidiaryimmaterial assets, so long as such sale is in each case, in the ordinary course of such business and (y) worn out, obsolete, scrap or surplus assets or assets no longer useful in the conduct of the business of the Loan Party’s Parties and their Subsidiaries or Subsidiary’s otherwise economically impracticable to maintain, or (iv) the sale of Cash Equivalents in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto thereafter no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of (x) any Domestic Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary GuarantorLoan Party or (y) any Foreign Subsidiary into or with any Subsidiary Loan Party in a transaction in which 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 a the Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) in accordance with Section 5.01(a)(ii) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form or dissolution is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions 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 or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan Party in an amount in excess of $10,000,000 shall not be permitted under this clause (c);
(d) any Disposition of Securitization Assets, and to the extent constituting a Disposition, any furnishing of Permitted Securitization Cash Collateral to a Securitization Subsidiary or the PNC Securitization Parties, in each case, solely to the extent subject to a Qualified Securitization Financing; provided, that in the case of a Disposition pursuant to the PNC Securitization, such Disposition shall be permitted solely to the extent such Disposition is prior to the Purchase and Sale Termination Date (as defined in the PNC Purchase and Lease-Back Transactions permitted by Section 6.03Sale Agreement as in effect on the Closing Date);
(e) Investments permitted by Section 6.046.04 (other than Section 6.04(v)), Permitted Liens, and dividends, distributions and other payments Liens permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.6.02
Appears in 2 contracts
Samples: Credit Agreement (Centric Brands Inc.), Credit Agreement (Centric Brands Inc.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary or preferred equity interests of the Company (except to the extent that no cash interest or any Subsidiaryother cash payments are required in respect thereof), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, supplies, services, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company or any Subsidiary Subsidiary, (ii) the sale of an any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) (A) the merger or consolidation of any Subsidiary into the Company in a transaction in which the Company is the surviving corporation or (other than B) the Co-Borrower) merger or consolidation of any Subsidiary that is not a Loan Party into a the Foreign Borrower in a transaction in which such the Foreign Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Domestic Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Domestic Loan Party and, in the case of each of clauses (ii)(A) and (ii), no person Person other than a Borrower the Company or a Subsidiary Guarantor Domestic Loan Party receives any consideration or in the case of clause (i)(B), no Person other than the Foreign Borrower receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (other than the Borrowers) or change in form of entity of the Company or any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Domestic Loan Party to a Subsidiary Guarantor that is not a Domestic Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of the Co-Borrower to any other SubsidiaryCompany, including without limitation, a Permitted Vessel TransferU.S.$50.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments repurchases of Equity Interests permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including non-cash proceeds) of any or required all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of the Company, U.S.$50.0 million; provided, provided further that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any purchase, lease, or other acquisition of assets, or any merger or consolidation consolidation, in order to effect each case in connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporationcorporation and (ii) involving any Domestic Loan Party other than the Company, the surviving or resulting entity shall be a Domestic Loan Party that is a Wholly Owned Subsidiary;
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Company or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) abandonment, cancellation or disposition of any intellectual property of the Borrowers in the ordinary course of business;
(l) the sale of the land owned by a Domestic Loan Party in Plaistow, New Hampshire and the sale of the facility owned by a Domestic Loan Party in Denver, Colorado;
(m) sales, leases or other dispositions of inventory of the Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiaryof the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b2.11(c);
(n) any disposition factoring of any assets owned receivables held by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vesselthe Company and its Subsidiaries as permitted under Section 6.01(t); and
(o) disposals of cash raised or borrowed for asset sales, mergers, consolidations and acquisitions made in connection with the purposes for which such cash was raised or borrowedPermitted Foreign Restructuring. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) or (o) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d), (f) or (d(k) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets in excess of U.S.$10.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiii) and (ii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 2 contracts
Samples: Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge Each Borrower will not, and will not permit any of its Restricted Subsidiaries to, merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all of any division, unit or any substantial part of the assets business of any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the lease, purchase and sale of inventory in the ordinary course of business by the Company Dutch Borrower or any Subsidiary Restricted Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by the Dutch Borrower or any Restricted Subsidiary, (iii) the sale of obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Dutch Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Restricted Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto thereafter no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Restricted Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivor, (ii) the merger or consolidation of any Restricted Subsidiary (other than the Co-Borrower) French Borrower into or with any Subsidiary Guarantor U.S. Loan Party in a transaction in which the surviving or resulting entity is a U.S. Loan Party, (iii) the merger or consolidation of any Non-U.S. Subsidiary Guarantor, other than the French Borrower into or with any Non-U.S. Loan Party in a transaction in which the surviving or resulting entity is a Non-U.S. Loan Party and, in the case of each of clauses (i), (ii) and (iiiii), no person other than a Borrower or a Subsidiary Guarantor Loan Party receives any considerationconsideration unless otherwise permitted elsewhere in this Agreement, (iiiiv) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Restricted Subsidiary that is not a Subsidiary Guarantor, Loan Party into or with any other Restricted Subsidiary that is not a Subsidiary Loan Party or (ivv) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary (other than a Borrowerthe French Borrower in accordance with Section 5.02(a)(ii) if the Company Dutch Borrower determines in good faith that such liquidation, dissolution or change in form or dissolution is in the best interests of the Company Borrowers and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases Dispositions to the Dutch Borrower or other dispositions to any a Subsidiary Loan Party (upon voluntary liquidation or otherwise) or any other Restricted Subsidiary; provided that in the case of any Disposition by any Subsidiary that is not a Loan Party, such Disposition shall be to the Dutch Borrower or a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan Party;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments Restricted Payments permitted by Section 6.06;
(f) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of the Dutch Borrower and the Restricted Subsidiaries as a whole, as determined in good faith by the management of the Dutch Borrower, which in the event of a swap with a Fair Market Value in excess of (x) $10,000,000 shall be evidenced by a certificate from a Responsible Officer of the Dutch Borrower and (y) $25,000,000 shall be set forth in a resolution approved in good faith by at least a majority of the Board of Directors of the Dutch Borrower;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts a receivables purchase, securitization or financing transactionfacility;
(gh) sales, transfers, leases or other dispositions Dispositions of assets property not otherwise permitted by under this Section 6.05 6.05; provided that (i) no Default or required to be included in this clause Event of Default shall exist at the time of, or would result from, such Disposition (g) other than any such Disposition made pursuant to Section 6.05(ca legally binding commitment entered into at a time when no Default or Event of Default existed or would have resulted from such Disposition)), (ii) such Disposition shall be for no less than the Fair Market Value of such property at the time of such Disposition and (iii) to the extent the purchase price for such Disposition (together with all related Dispositions) is in excess of $10,000,000, the Dutch Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Permitted Investments; provided, however, that (x) the Net Proceeds thereof are applied in accordance with Section 2.11(b2.09(c) and (y) for the purposes of clause (h)(iii), (A) any liabilities (as shown on the most recent balance sheet of the Dutch Borrower provided hereunder or in the footnotes thereto) of the Dutch Borrower or such Restricted Subsidiary, other than any Junior Financing, that is assumed by the transferee with respect to the applicable Disposition and for which the Dutch Borrower and all of the Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash and (B) any securities received by the Dutch Borrower or such Restricted Subsidiary from such transferee that are converted by the Dutch Borrower or such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within 180 days following the closing of the applicable Disposition, shall be deemed to be cash;
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, and (ii) involving a Subsidiary Loan Party (other than the French Borrower), the surviving or resulting entity shall be a Subsidiary Loan Party;
(i) leases, charters licensing and cross-licensing arrangements involving any Intellectual Property of the Dutch Borrower or 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 property Restricted Subsidiary in the ordinary course of business;
business consistent with past practice, to the extent that such license or cross-license does not materially interfere with the ordinary course of conduct of the business of the Dutch Borrower or any of its Restricted Subsidiaries and (jii) sales, leases the abandonment or other dispositions disposition of inventory of the Company or any Subsidiary Intellectual Property (A) determined by the management of the Company Dutch Borrower to be no longer useful or necessary in the operation of the business of the Dutch Borrower or any Loan Party of the Subsidiaries or (B) to the extent that it would not be commercially reasonable to obtain, maintain, preserve, renew, extend and keep in full force and effect such Intellectual Property;
(k) the lease, assignment or sublease of any real or personal property (except Intellectual Property) in the ordinary course of business;
(l) sales, leases or other dispositions of inventory, equipment or other tangible assets (excluding Equity Interests, assets constituting a business division, unit, line of business, all or substantially all of the assets of any Material Subsidiary, Sale and Lease-Back Transactions and Dispositions of accounts receivable in connection with any receivables purchase, securitization or financing facility) of the Dutch Borrower and the Restricted Subsidiaries determined by the management of the Dutch Borrower to be no longer useful or necessary in the operation of the business of the Dutch Borrower or any of the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.09(c);
(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) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that [Reserved];
(i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (yn) [*Reserved]% ;
(o) Dispositions of Consolidated Total Assets Unrestricted Subsidiaries;
(p) Dispositions of accounts receivable in connection with Qualified Receivables Financings;
(q) so long as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% 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, either Borrower may merge or consolidate with any other Person; provided that (CA) with respect to such Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such exchange with aggregate gross consideration in excess merger or consolidation is not either Borrower (any such Person, the “Successor Borrower”), (1) the Successor Borrower to the Dutch Borrower shall be an entity organized or existing under the laws of the greater Netherlands and any Successor Borrower to the French Borrower shall be an entity organized or existing under the laws of France, (x2) $[*] the Successor Borrower shall expressly assume all the obligations of the applicable Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the applicable Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (4) the applicable Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer stating that such merger or consolidation complies with this Agreement and (y5) [*]% an opinion of Consolidated Total Assets as of the end of the fiscal quarter immediately prior counsel addressed to the date of such exchange for which financial statements Administrative Agent and the Lenders reasonably satisfactory to the Administrative Agent; provided further that if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the applicable Borrower under this Agreement and the other Loan Documents; provided further that the applicable Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been delivered pursuant to Section 5.04reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, immediately after giving effect thereto, including without limitation the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)USA Patriot Act;
(nr) any disposition [Reserved];
(s) [Reserved];
(t) transfers of any assets owned condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by any New Vessel Subsidiary deed in lieu of condemnation or otherwise), transfers of any Vessel property that is not have been subject to a Mortgaged Vesselcasualty to the respective insurer of such real property as part of an insurance settlement and transfers of property subject to casualty event upon receipt of the Net Proceeds of such casualty event;
(u) Dispositions of Investments (including Equity Interests) in joint ventures (other than a Subsidiary) to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(v) the unwinding of Swap Agreements permitted hereunder pursuant to their terms; and
(ow) disposals any Disposition of cash raised any asset between or borrowed for among the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained Restricted Subsidiaries as a substantially concurrent interim Disposition 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets connection with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), taken together with all other Designated Non-Cash Consideration received Disposition otherwise permitted pursuant to this clause (c) that is at that time outstanding, not to exceed the greater of $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 cash6.05.
Appears in 2 contracts
Samples: Credit Agreement (Constellium Holdco B.V.), Credit Agreement (Constellium Holdco B.V.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company 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 that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Borrower or any Subsidiary Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of an 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 Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger merger, consolidation or amalgamation of any Subsidiary into (other than or with) the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger merger, consolidation or amalgamation or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition may merge, consolidate or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge amalgamate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of their Subsidiaries its subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor Loan Party in reliance on this paragraph (c) shall be made in compliance with Section 6.07, and shall (x) be made at a time when the Payment Conditions are satisfied, or (y) not in the Co-Borrower aggregate exceed, in any fiscal year of the Borrower, 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease or other disposition for which financial statements have been delivered pursuant to Section 5.04; provided that (i) with respect to any sale, transfer, lease or other Subsidiarydisposition made under this clause (y), including without limitationno Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) immediately after giving effect to any sale, a Permitted Vessel Transfertransfer, lease or other disposition made under this clause (y), the aggregate Revolving Facility Credit Exposure shall not exceed the Borrowing Base;
(d) Sale and Lease-Lease Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments dividends permitted by Section 6.066.06 and Capital Expenditures;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases leases, licenses or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that (i) the aggregate gross proceeds (including non-cash proceeds) of any or required to be included all assets sold, transferred, leased, licensed or otherwise disposed of in reliance upon this clause paragraph (g) shall not exceed, in any fiscal year of the Borrower, the greater of (x) $125 million, and (y) 8.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 6.05(c)); provided5.04, that (ii) no Default or Event of Default exists or would result therefrom, and (iii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including non-cash proceeds) in excess of $10.0 million, immediately after giving effect thereto, the Net Proceeds thereof are applied in accordance with Section 2.11(b)Payment Conditions shall be satisfied;
(h) Permitted Business Acquisitions (including any merger or consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, provided that following any such merger or consolidation or amalgamation, (i) involving a the Borrower, such the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary, and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) leases, charters or licenses (on a non-exclusive basis with respect to intellectual property)licenses, 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 Company or any Subsidiary Borrower and the Subsidiaries determined by the management of the Company Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to Sale; provided that such Investment constitutes a Permitted Business Acquisition or the first proviso acquisition of paragraph (a) assets useful in the business of the definition of “Net Proceeds”Borrower and the Subsidiaries;
(l) [reserved];the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; and
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company Borrower with respect to such fair market value value, and (iii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0420.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of Holdings or the CompanyBorrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the CompanyBorrower, the greater of $[*] 125.0 million and [*]8.5% 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 5.045.04(b), (B) no Default or Event of Default exists or would result therefrom, therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, immediately after giving effect thereto, the Company Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a) or (d(d) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration consideration, and (iii) no sale, transfer or other disposition of assets in excess of $10 million shall be permitted by paragraph (g(g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] 10.0 million or to other transactions involving assets with a fair market value of not more than the greater of $[*] 45.0 million and [*]3.0% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the CompanyBorrower’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be deemed to be cashcash (other than any such liabilities that are by their terms subordinated in right of payment to the Obligations), (b) any notes or other obligations or other securities or assets received by the Company Borrower or such Subsidiary from the transferee that are converted by the Company Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash ), and (c) any Designated Non-Cash Consideration received by the Company Borrower or any of its the Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)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 $35.0 million at the greater of $[*] million and [*]% of Consolidated Total Assets as time of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 that 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 Loan Party, 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: Credit Agreement (Verso Paper Corp.)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge or amalgamate into or consolidate with any other person, or permit any other person to merge or amalgamate into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personperson or any division, unit or business of any person (including, in each case, pursuant to a Delaware LLC Division), except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company or any Subsidiary and the sale of receivables by any Foreign Subsidiary (other than a Foreign Subsidiary that is a Loan Party) pursuant to non-recourse factoring arrangements in the ordinary course of business of such Foreign Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or Delaware LLC Division of any Subsidiary (other than the Co-a Borrower) into a Borrower the Company in a transaction in which such Borrower the Company is the survivor, (ii) the merger merger, amalgamation, consolidation or consolidation Delaware LLC Division of any Subsidiary (other than the Co-a Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Company or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger merger, amalgamation, consolidation or consolidation Delaware LLC Division of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Company or any Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to Subsidiary may merge, amalgamate or effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge Division with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party (and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.10);
(c) sales, transfers, leases or other dispositions to the Company 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 (i) not a Loan Party or by any (ii) a German Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan 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) Sale and Lease-Lease Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments dividends permitted by Section 6.066.06 and capital expenditures;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases leases, Delaware LLC Divisions 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) [reserved], (ii) no Default or Event of Default exists or would result therefrom; (iii) immediately after giving effect thereto, the Net Proceeds thereof are applied Revolving Facility Credit Exposure shall not exceed the Combined Line Cap calculated on a Pro Forma Basis after giving effect to such sale, transfer, lease, Delaware LLC Division or other disposition, and (iv) immediately after giving effect to any such sale, lease, transfer, lease, Delaware LLC Division or other disposition of Accounts or Inventory not undertaken in accordance with Section 2.11(b)the ordinary course of business, the Revolving Facility Credit Exposure shall not exceed the Combined Line Cap;
(h) Permitted Business Acquisitions (including any merger merger, amalgamation, consolidation or consolidation Delaware LLC Division in order to effect a Permitted Business Acquisition); provided, that following any such merger merger, amalgamation, consolidation or consolidation Delaware LLC Division (i) involving a Borrowerthe Company, such Borrower the Company is the surviving corporation, (ii) involving a Domestic Subsidiary, Canadian Subsidiary (other than the Canadian Borrower), U.K. Subsidiary (other than the U.K. Borrower) or German Subsidiary (other than the German Borrowers), the surviving, continuing or resulting entity shall be a Subsidiary Loan Party that is a Wholly-Owned Subsidiary, (iii) involving a Foreign Subsidiary (other than a Canadian Subsidiary, a U.K. Subsidiary or a German Subsidiary), the surviving, continuing or resulting entity shall be a Wholly-Owned Subsidiary, (iv) involving the Canadian Borrower, the Canadian Borrower is the surviving, continuing or resulting entity, (v) involving the U.K. Borrower, the U.K. Borrower is the surviving, continuing or resulting entity and (vi) involving a German Borrower, a German Borrower is the surviving, continuing or resulting entity;
(i) leases, charters or 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 Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reserved]the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided, that, after giving effect to each such purchase and sale or other transfer, the Borrowers shall be in compliance with Section 2.11(b);
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided 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 an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0420.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, 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 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, therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect theretoto such exchange, the Company Revolving Facility Credit Exposure shall be in not exceed the Combined Line Cap calculated on a Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)Basis after giving effect to such exchange;
(n) any disposition the sale of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vesseldescribed on Schedule 6.05;
(o) the Business Combination and the Closing Date Assignment; and
(op) disposals the purchase and sale or other transfer of cash raised or borrowed for the purposes for which such cash was raised or borrowedReceivables Assets in connection with a Permitted Supplier Finance Facility. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than (x) sales, transfers, leases leases, licenses or other dispositions to Loan Parties that are not German Subsidiary Loan Parties pursuant to paragraph (c(c) hereofof this Section 6.05 and (y) the transactions permitted by paragraph (e) of this Section 6.05 (solely with respect to Section 6.04(b))) unless such disposition is for fair market value, value and (ii) no sale, transfer or other disposition of assets in excess of $25.0 million shall be permitted by paragraph (a) or (d(g) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii)ii) above, (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the Company’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company (other than liabilities that is are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cashassets, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary of the Company from the such transferee that are converted by the Company or such Subsidiary of the Company into cash within 180 days after of the receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)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 Consolidated Total Assets EBITDA as of the end of the fiscal quarter immediately prior to most recently completed Test Period at the date time of the receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 the Company 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 Company in order to evidence the foregoing. Anything contained herein to the contrary notwithstanding, (A) neither the Company nor any other Loan Party shall sell or otherwise dispose of any Inventory or Accounts (other than sales of Inventory in the ordinary course of business and sales of Accounts for collection) if, as a result of such sale or other disposition, the Revolving Facility Credit Exposure would exceed the Combined Line Cap, in each case determined as of the time of such sale or other disposition, and (B) none of the capital stock of any Borrower shall be sold or transferred, nor shall any Borrower enter into any merger, amalgamation or similar transaction in which such Borrower is not the surviving entity, unless in any such case (1) the obligations of such Borrower are assumed by another Borrower on terms reasonably acceptable to the Administrative Agent, (2) such event would not result in a Default or an Event of Default, and (3) the portion of the Revolving Facility Credit Exposure of the assuming Borrower does not exceed the portion of the applicable Borrowing Base attributable to the Accounts and Inventory of the assuming Borrower.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Magnera Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into into, amalgamate with or consolidate with any other personPerson, or permit any other person Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company a Loan Party or any Subsidiarypreferred equity interests of a Loan Party, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company Loan Party, (ii) the sale of any other asset in the ordinary course of business by a Loan Party, (iii) the sale of surplus, obsolete or any Subsidiary of an asset worn out equipment or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or business by a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger or consolidation of any Subsidiary (other than of the Co-Borrower) Borrower into a the Borrower in a transaction in which such the Borrower is the survivorsurviving entity, (ii) the merger or consolidation of any Subsidiary (other than of the Co-Borrower) Borrower into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any considerationLoan Party, (iii) the merger merger, amalgamation or consolidation of any Subsidiary (other than of the Co-Borrower) Borrower that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary of the Borrower that is not a Subsidiary GuarantorLoan Party, or (iv) the liquidation liquidation, winding up, or dissolution of any Subsidiary of the Borrower or (v) the change in form of entity of the Borrower or any Subsidiary (other than a Borrower) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to Lendersthe Lenders taken as a whole; for the avoidance of doubt it is agreed that [Frank’s International Trinidad Unlimited], (v) any disposition to effect [Frank’s International Ecuador, C.A.] and [Frank’s International Venezuela 2] may change their form of entity after the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10Closing Date;
(c) sales, transfers, leases or other dispositions to any Loan Party the Borrower or by a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); provided that if as a result thereof any Subsidiary that is not previously a Material Subsidiary Guarantor or the Co-Borrower to any other becomes a Material Subsidiary, including without limitation, a Permitted Vessel Transfersuch Subsidiary complies with the provisions of Section 5.10(b);
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments dividends permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary6.05; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
aggregate gross proceeds (kincluding noncash proceeds) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (ag) shall not exceed, in any fiscal year of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunderBorrower, (ii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]10.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04year; and provided further that after giving effect thereto, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements shall have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)occurred;
(nh) any disposition merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving the Borrower the Borrower is the surviving corporation and (ii) involving a Subsidiary, the surviving or resulting entity shall be a Subsidiary;
(i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any assets owned by any New Vessel Subsidiary or Loan Party in the ordinary course of any Vessel that is not a Mortgaged Vesselbusiness; and
(oj) disposals abandonment, cancellation or disposition of cash raised or borrowed for any intellectual property of any Loan Party in the purposes for which such cash was raised or borrowedordinary course of business. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) the Borrower may, so long as no saleEvent of Default shall have occurred and be continuing or would result therefrom, transfer sell, grant or other disposition otherwise issue Equity Interests to members of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases management of the Borrower or other dispositions to Loan Parties any of the Subsidiaries of the Borrower pursuant to paragraph (c) hereof) unless such disposition is for fair market valuestock option, stock ownership, stock incentive or similar plans, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to the Borrower or any of its Subsidiaries pursuant to paragraph (a(c) or (dhereof) of this Section 6.05 unless such disposition is for at least 75% cash consideration and fair market value, (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g(a) or (d) of this Section Section 6.05 unless such disposition is for at least 7551% cash consideration and (iv) no sale, transfer or other disposition of assets in excess of U.S. $10,000,000 shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 51% cash consideration; provided that the provisions for purposes of clause (ii) or clauses (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iiiiv), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary of the Borrower that is not a Loan Party (as shown on the CompanyBorrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Frank's International N.V.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company 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 this Section shall not prohibit:
(a) (i) any disposal by the Company Borrower or any Subsidiary of an asset or other property in the ordinary course of the CompanyBorrower’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to Lenders, Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a the Borrower, such the Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company Borrower or any Subsidiary determined by the management of the Company Borrower to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0425,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company Borrower with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0475,000,000, such exchange shall have been approved by at least a majority of the board of directors of the CompanyBorrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the CompanyBorrower, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged VesselSubsidiary; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a) or (d(d) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g(g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company Borrower or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the CompanyBorrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, cash and (b) any notes or other obligations or other securities or assets received by the Company Borrower or such Subsidiary from the transferee that are converted by the Company Borrower or such Subsidiary into cash within 180 days after receipt thereof hereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company Parent or any SubsidiarySubsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory (including the sale of transponder capacity) in the ordinary course of business by the Company Holdings or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s business by Holdings or any Subsidiary’s business, (iiiv) any acquisition leases and subleases (in one including leases (including by way of sales-type leases) of transponder capacity and the leasing or a series licensing of transactionsteleports) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s business by Holdings or Subsidiary’s business, any Subsidiary or (iiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Holdings determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Holdings and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases leases, issuances or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases, issuances or other dispositions by a Loan Party to a Non-Subsidiary Loan Party shall be made in compliance with Section 6.07; provided, further, that the aggregate gross proceeds of all sales, transfers, leases, issuances or other dispositions by any Loan Parties to Non-Subsidiary that is Loan Parties in reliance upon this paragraph (c) shall not a Subsidiary Guarantor or exceed the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfergreater of $50.0 million and 5.0% of Consolidated Total Assets;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, dividends and distributions and other payments permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases leases, issuances (to the extent of all of the Equity Interests in a Person then owned by Holdings and its Subsidiaries) or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that (or required to be included in this clause (gi) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b)2.11(c) and (ii) the aggregate gross proceeds (including noncash proceeds) of any or all such sales, transfers, leases, issuances or dispositions made in reliance upon this paragraph (h) shall not exceed, in any fiscal year of Holdings, the greater of $15.0 million and 1.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporationcorporation and (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party;
(ij) leases, charters the Transactions;
(k) licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of Parent or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jl) any NSS-8 Asset Sale or Termination, provided that the NSS-8 Asset Sale Proceeds are applied in accordance with Section 2.11(c);
(m) sales, leases or other dispositions of inventory of the Company or any Subsidiary Holdings and its Subsidiaries determined by the management of the Company Holdings or Parent to be no longer useful or necessary in the operation of the business of Holdings or any Loan Party or Subsidiaryof the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(kn) acquisitions and purchases made with the proceeds sale of any Asset Sale pursuant to Excluded Payload on a Satellite; provided that the first proviso of paragraph (a) of the definition of “Net Proceeds”Proceeds shall be applied as set forth in Section 2.11(c);
(lo) [reserved];
(m) any exchange the sale or other disposition of assets for services and/or other assets of comparable or greater valuea Satellite; provided that (i) after giving effect to such sale or other disposition, Parent shall continue to have a satellite with substantially comparable or better performance and reliability specifications (as compared to the period immediately prior to such sale) operating at least [*]% each of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunderfollowing orbital locations: 319.5 degrees East, 338 degrees East, 57 East, and 95 East; (ii) after giving effect to any such sale or disposition, the projected Total Leverage Ratio, projected on a Pro Forma Basis for the first period of four consecutive fiscal quarters ending after the first anniversary of such sale or other disposition shall be equal to or less than the projected Total Leverage Ratio without giving pro forma effect to such transaction, as determined in the event of an exchange with good faith by Parent and as set forth in a fair market value resolution approved in excess good faith by at least a majority of the greater Management Board of Parent; (xiii) $[*] and the Net Proceeds thereof shall be applied as set forth in Section 2.11(c); (yiv) [*]% at the time of Consolidated Total Assets as of any such sale or disposition, the end of Senior Secured Leverage Ratio for the fiscal quarter immediately prior to the date of such exchange then most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.045.04(a) or (b) (determined on a pro forma basis giving effect only to the principal amount of Term Loans to be repaid pursuant to Section 2.11(c) immediately upon receipt of the Net Proceeds of such sale or disposition) shall be equal to or less than 3.00:1.00; and (v) in no event shall Satellite NSS-7 be sold or disposed of pursuant to this paragraph (o);
(p) the exchange of a Satellite for one or more satellites operated by another FSS Operator, in one or a series of related transactions (which need not be with the same party); provided that (i) after giving effect to such exchange, Parent shall continue to have a satellite with substantially comparable or better performance and reliability specifications (as compared to the period immediately prior to such sale) operating at each of the following orbital locations 319.5 degrees East, 338 degrees East, 57 East, and 95 East; (ii) after giving effect to any such exchange, the Administrative Agent projected Total Leverage Ratio, projected on a Pro Forma Basis for the first period of four consecutive fiscal quarters ending after the first anniversary of such exchange shall have received be equal to or less than the projected Total Leverage Ratio without giving pro forma effect to such transaction, as determined in good faith by Parent and as set forth in a certificate from resolution approved in good faith by at least a Responsible Officer majority of the Company with respect to such fair market value and Management Board of the Parent; (iii) any Net Proceeds from the exchange shall be applied as set forth in Section 2.11(c); (iv) at the event time of an exchange with a fair market value in excess of any such exchange, the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of Senior Secured Leverage Ratio for the end of the fiscal quarter immediately prior to the date of such exchange then most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least 5.04(a) or (b) (determined on a majority pro forma basis giving effect only to any principal amount of Term Loans to be repaid pursuant to Section 2.11(c) immediately upon receipt of the board of directors of the Company; provided, further, that Net Proceeds (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceedsif any) of any such exchange) shall be equal to or all assets less than 3.00:1.00; and (v) in no event shall Satellite NSS-7 be exchanged in reliance upon pursuant to this paragraph (mp); and
(q) shall not exceed(i) sales, in any fiscal year of the Companyleases, the greater of $[*] and [*]% 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 transfers or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater other dispositions of (x) $[*] and any orbital location or rights to use any orbital location which, in each case, is not being used by Parent or a Subsidiary of Parent on the Closing Date or (y) [*]% any RF frequencies or rights to use any RF frequencies which, in each case, are not being used by Parent or a Subsidiary of Consolidated Total Assets as of Parent on the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma ComplianceClosing Date at any orbital location, and (Dii) any coordination or other agreement pursuant to which Parent or a Subsidiary of Parent, as applicable, agrees to restrict its use of any orbital location or frequencies, or agrees not to place into use any orbital location or frequencies; provided that the Net ProceedsProceeds from any such sale, if anylease, thereof are transfer, disposition or other agreement shall be applied as set forth in accordance with Section 2.11(b2.11(c);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no action shall be permitted which results in a Change of Control under clause (a) of the definition thereof, (ii) Holdings shall at all times own directly 100% of the Equity Interests of Parent free and clear of any Liens (other than Liens created by the Security Documents or arising by operation of law), (iii) each Subsidiary that is a Revolving Borrower shall be a Wholly Owned Subsidiary and its Equity Interests shall be held free and clear of any Liens (other than Liens created by the Security Documents or arising by operation of law), (iv) no sale, transfer transfer, lease, issuance or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, issuances or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, or sales or transfers pursuant to paragraph (f) hereof) unless such disposition is for fair market value, (iiv) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d), (m) or (d(o) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration, (vi) no sale, transfer or other disposition of assets in excess of $5.0 million shall be permitted by paragraph (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iiivii) no sale, transfer or other disposition of assets in excess of $5.0 million shall be permitted by paragraph (g(n) or (q) of this Section Section 6.05 unless such disposition is for at least 7550% cash consideration; provided that the provisions of clause (iix) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiiv), (avi) and (vii), the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be deemed cash and (y) for purposes of clause (vii), any future non-contingent cash payments required to be cash, made to Parent or any Subsidiary as consideration for any transaction referred to in Section 6.05(n) or (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash receivedq) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (New Skies Satellites Holdings Ltd.)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or in any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Company Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the sale of an asset surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Borrower or any substantial part Subsidiary or (iv) the sale or disposition of the assets or other property of any other person, so long as such acquisition is Permitted Investments in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger merger, consolidation or amalgamation of any Subsidiary (other than into or with the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger merger, consolidation or consolidation amalgamation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger merger, consolidation or consolidation amalgamation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower or the Subsidiaries and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition may merge, consolidate or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder amalgamate into or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or Loan Party in reliance on this paragraph (c) shall not in the Co-Borrower to aggregate exceed, in any other Subsidiaryfiscal year of the Borrower, including without limitation, a Permitted Vessel Transfer$15.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments Restricted Payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases leases, licenses 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))6.05; provided, that (i) no Event of Default exists or would result therefrom, (ii) the Net Proceeds thereof are applied in accordance with Section 2.11(b);, (iii) such sale, transfer or other disposition of assets shall be for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04 and (iv) no such sale, transfer or other disposition of assets in excess of $25 million shall be permitted unless such disposition is for at least 75% cash consideration; provided, that for purposes of this subclause (g)(iv), each of the following shall be deemed to be cash: (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 or are otherwise cancelled in connection with such transaction, (B) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary 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), (C) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this subclause (g)(iv)(C) that is at that time outstanding, not to exceed the greater of $75.0 million and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (D) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration.
(h) Permitted Business Acquisitions (including any merger merger, consolidation or consolidation amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger merger, consolidation or consolidation amalgamation involving a the Borrower, such the Borrower is the surviving corporationentity;
(i) leases, charters or licenses (on a non-exclusive basis with respect to intellectual property)licenses, 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 or sales, licenses, sublicenses or other dispositions or abandonment of intellectual property of the Company Borrower or any Subsidiary of its Subsidiaries determined by the management of the Company Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reserved]the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(m) any exchange of assets for services and/or other assets used or useful in a Similar Business that are of comparable or greater valuevalue (other than any such exchanges by the Borrower or Subsidiary with a Person that is an Affiliate of the Borrower or Subsidiary); provided provided, that (i) at least [*]90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, and (ii) in the event of an exchange a swap with a fair market value (as determined in good faith by the Borrower) in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of the CompanyBorrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% 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, therefrom and (CB) with respect to any such exchange with aggregate gross consideration that has a fair market value (as determined in good faith by the Borrower) in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, immediately after giving effect thereto, the Company Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary disposition, merger, consolidation, amalgamation or of any Vessel that is not a Mortgaged Vessel; anddissolution in connection with the Transactions and the Emergence Restructuring Transactions;
(o) disposals of cash raised any disposition made pursuant to any Master Lease, any Additional Lease, any MLSA or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section 6.05 above, any Operations Management Agreement;
(p) (i) the lease, sublease or license of any portion of any project to persons who, either directly or through Affiliates of such persons, intend to operate or manage nightclubs, bars, restaurants, recreation areas, spas, pools, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within such project and (ii) the grant of declarations of covenants, conditions and restrictions and/or easements with respect to common area spaces and similar instruments benefiting such tenants of such leases, subleases and licenses generally and/or entered into connection with any project (collectively, the “Venue Easements,” and together with any such leases, subleases or licenses, collectively the “Venue Documents”); provided that (A) no saleEvent of Default shall exist and be continuing at the time any such Venue Document is entered into or would occur as a result of entering into such Venue Document, transfer (B) the Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased, subleased or licensed space and (C) no Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operations of the Borrower and the Subsidiaries; provided further that upon request by the Borrower, the Collateral Agent on behalf of the Secured Parties shall provide the tenant, subtenant or licensee under any Venue Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit K or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party;
(q) the dedication of space or other dispositions of property in connection with and in furtherance of constructing structures or improvements reasonably related to the development, construction and operation of any project; provided that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the operations of the Borrower and the Subsidiaries;
(r) dedications of, or the granting of easements, rights of way, rights of access and/or similar rights, to any Governmental Authority, utility providers, cable or other communication providers and/or other parties providing services or benefits to any project, any Real Property held by the Loan Parties or the public at large that would not reasonably be expected to interfere in any material respect with the operations of the Borrower and the Subsidiaries; provided that upon request by the Borrower, the Administrative Agent shall direct the Collateral Agent on behalf of the Secured Parties to subordinate its Mortgage on such Real Property to such easement, right of way, right of access or similar agreement in such form as is reasonably satisfactory to the Administrative Agent and the applicable Loan Party;
(s) any disposition of assets shall be permitted by this Section 6.05 Equity Interests in a Subsidiary pursuant to an agreement or other obligation with or to a person (other than salesthe Borrower and the Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), transfers, leases made as part of such acquisition and in each case comprising all or other a portion of the consideration in respect of such sale or acquisition;
(t) dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall do not apply to any individual transaction or series of related transactions involving assets constitute Collateral with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (cBorrower) that is at that time outstanding, of not to exceed more than the greater of $[*] 10.0 million and [*]% 0.025 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(u) dispositions of Consolidated Total Assets as non-core assets acquired in connection with a Permitted Business Acquisition or other Permitted Investment;
(v) other dispositions of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (assets with the a fair market value (as determined in good faith by the Borrower) of not more than the greater of $10.0 million and 0.025 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(w) dispositions set forth on Schedule 6.05; and
(x) subject to the last paragraph of this Section 6.05, each item of Designated Non-Cash Consideration being measured the Borrower and the Subsidiaries may enter into any leases, subleases, easements or licenses with respect to any of its Real Property. Notwithstanding the foregoing provisions of this Section 6.05, subsection (x) above shall be subject to the additional provisos that: (a) no Event of Default shall exist and be continuing at the time received such transaction, lease, sublease, easement or license is entered into, (b) such transaction, lease, sublease, easement or license would not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the applicable project, and without giving effect (c) no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to subsequent changes any lessee or any party financing any lessee; provided that, upon request by the Borrower, the Administrative Agent shall direct the Collateral Agent on behalf of the Secured Parties to provide the tenant under any such lease or sublease with a subordination, non-disturbance and attornment agreement in value) such form as is reasonably satisfactory to the Administrative Agent (it being understood and agreed that no such agreement shall be deemed required to be cashprovided unless (A) no Event of Default shall exist and be continuing at such time or would occur as a result thereof and (B) no Material Adverse Effect would result therefrom). To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other than the Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by the Borrower or such Subsidiary Loan Party will not be so released), and the Administrative Agent shall take, and is hereby 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. 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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company any Borrower or any SubsidiarySubsidiary or preferred equity interests of the Domestic 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 personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the sale of inventory, supplies, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company Domestic Borrower or any Subsidiary Subsidiary, (ii) the sale of an any other asset in the ordinary course of business by the Domestic 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 Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Domestic Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than the Co-Borrower) into a any Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than a such Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (other than the Borrowers) or change in form of entity of the Domestic Borrower or any Subsidiary (other than a Borrower) if the Company Domestic Borrower determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Domestic Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Domestic Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of the Co-Borrower to any other SubsidiaryDomestic Borrower, including without limitation, a Permitted Vessel Transfer3.75% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments Dividends permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases 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))6.05; provided, provided that the Net Proceeds thereof are applied aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in accordance with Section 2.11(b)reliance upon this paragraph (h) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the Domestic Borrower, 3.75% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a any Borrower, such Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a domestic Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), property of any property Borrower or any Subsidiary in the ordinary course of business;
(jk) sales, leases or other dispositions of inventory of the Company or any Subsidiary Domestic Borrower and its Subsidiaries determined by the management of the Company any Borrower to be no longer useful or necessary in the operation of the business of the Domestic Borrower or any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;Subsidiaries; and
(l) [reserved];
(m) any exchange sale, transfer or other disposition of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunderrelated to Multiphase Power and Processing Technologies, (ii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] LLC and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value Dresser-Rand and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied Enserv Services Sdn. Bnd. in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is the constitutive documents related thereto and in an aggregate amount not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowedto exceed U.S.$10 million. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) the Domestic Borrower shall at all times own, directly or indirectly, at least 85% of the Equity Interests of each other Borrower, in each case, free and clear of any Liens other than the Liens created by the Security Documents, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g(a), (d), (f) or (k) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (vii) no sale, transfer or other disposition of assets in excess of U.S.$10.0 million shall be permitted by paragraph (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions for purposes of clause clauses (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the CompanyDomestic Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Domestic Borrower or any Subsidiary of the Domestic Borrower that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge or amalgamate into or consolidate with any other person, or permit any other person to merge or amalgamate into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personperson or any division, unit or business of any person (including, in each case, pursuant to a Delaware LLC Division), except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company or any Subsidiary and the sale of receivables by any Foreign Subsidiary (other than a Foreign Subsidiary that is a Loan Party (other than the UK Borrower (unless it becomes a borrower under an Incremental European Revolving Facility))) pursuant to non-recourse factoring arrangements in the ordinary course of business of such Foreign Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or Delaware LLC Division of any Subsidiary (other than the Co-a Borrower) into a Borrower the Company in a transaction in which such Borrower the Company is the survivor, (ii) the merger merger, amalgamation, consolidation or consolidation Delaware LLC Division of any Subsidiary (other than the Co-a Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Company or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger merger, amalgamation, consolidation or consolidation Delaware LLC Division of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Company or any Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to Subsidiary may merge, amalgamate or effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge Division with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party (and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party (other than the UK Borrower (unless it becomes a borrower under an Incremental European Revolving Facility)) to the UK Borrower (unless it becomes a borrower under an Incremental European Revolving Facility) or by any a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan 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) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments dividends permitted by Section 6.066.06 and capital expenditures;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases leases, Delaware LLC Divisions 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) the Net Proceeds thereof are applied aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased, Delaware LLC Division or otherwise disposed of in accordance with reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Company, 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 2.11(b)5.04, (ii) no Default or Event of Default exists or would result therefrom; (iii) immediately after giving effect thereto, the Revolving Facility Credit Exposure shall not exceed the Combined Line Cap calculated on a Pro Forma Basis after giving effect to such sale, transfer, lease, Delaware LLC Division or other disposition, and (iv) immediately after giving effect to any such sale, lease, transfer, lease, Delaware LLC Division or other disposition of Accounts or Inventory not undertaken in the ordinary course of business, the Revolving Facility Credit Exposure shall not exceed the Combined Line Cap;
(h) Permitted Business Acquisitions (including any merger merger, amalgamation, consolidation or consolidation Delaware LLC Division in order to effect a Permitted Business Acquisition); provided, that following any such merger merger, amalgamation, consolidation or consolidation Delaware LLC Division (i) involving the Company, the Company is the surviving corporation, (ii) involving a Domestic Subsidiary or Canadian Subsidiary (other than the Canadian Borrower), the surviving, continuing or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary, (iii) involving a Foreign Subsidiary (other than a Canadian Subsidiary or the UK Borrower), the surviving, continuing or resulting entity shall be a Wholly Owned Subsidiary, (iv) involving the Canadian Borrower, such the Canadian Borrower is the surviving or continuing corporation and (v) involving the UK Borrower, the UK Borrower is the surviving or continuing corporation;
(i) leases, charters or 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 Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reserved]the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided, that, after giving effect to each such purchase and sale or other transfer, the Borrowers shall be in compliance with Section 2.11(b);
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided 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 an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0420.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of Holdings or the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, 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, therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect theretoto such exchange, the Company Revolving Facility Credit Exposure shall be in not exceed the Combined Line Cap calculated on a Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)Basis after giving effect to such exchange;
(n) any disposition the sale of any assets owned by any New Vessel Subsidiary described on Schedule 6.05;
(o) [reserved];
(p) the purchase and sale or other transfer of any Vessel that is not Receivables Assets in connection with a Mortgaged VesselPermitted Supplier Finance Facility; provided, that, after giving effect to each such purchase and sale or other transfer, the Borrowers shall be in compliance with Section 2.11(b); and
(oq) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowedRPC Acquisition. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than (x) sales, transfers, leases leases, licenses or other dispositions to Loan Parties (other than the UK Borrower (unless it becomes a borrower under an Incremental European Revolving Facility)) pursuant to paragraph (c(c) hereofof this Section 6.05 and (y) the transactions permitted by paragraph (e) of this Section 6.05 (solely with respect to Section 6.04(b)) unless such disposition is for fair market value, value and (ii) no sale, transfer or other disposition of assets in excess of $15 million shall be permitted by paragraph (a) or (d(g) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii)ii) above, (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the Company’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company (other than liabilities that is are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cashassets, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary of the Company from the such transferee that are converted by the Company or such Subsidiary of the Company into cash within 180 days after of the receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)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 $[*] million and [*]3.0% of Consolidated Total Assets as and $100 million at the time of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 Company 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 Company in order to evidence the foregoing. Anything contained herein to the contrary notwithstanding, (A) neither the Company nor any other Loan Party shall sell or otherwise dispose of any Inventory or Accounts (other than sales of Inventory in the ordinary course of business and sales of Accounts for collection) if, as a result of such sale or other disposition, the Revolving Facility Credit Exposure would exceed the Combined Line Cap, in each case determined as of the time of such sale or other disposition, and (B) none of the capital stock of any Borrower shall be sold or transferred, nor shall any Borrower enter into any merger, amalgamation or similar transaction in which such Borrower is not the surviving entity, unless in any such case (1) the obligations of such Borrower are assumed by another Borrower on terms reasonably acceptable to the Administrative Agent, (2) such event would not result in a Default or an Event of Default, and (3) the portion of the Revolving Facility Credit Exposure of the assuming Borrower does not exceed the portion of the applicable Borrowing Base attributable to the Accounts and Inventory of the assuming Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Global Group, Inc.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any the Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a the Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a the Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a the Subsidiary Guarantor into or with any other Subsidiary that is not a the Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a the Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a the Borrower, such the Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a the Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75[*]% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, 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, including effected pursuant to a Delaware LLC Division) all or any part of its substantially all the assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests ) of the Company or any SubsidiaryU.S. 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 this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary may (other than x) merge into the Co-Borrower) into a U.S. Borrower in a transaction in which such the U.S. Borrower is the survivorsurviving corporation, (y) liquidate or dissolve into the U.S. Borrower or (z) dispose of all or substantially all its assets to the U.S. Borrower, in each case, so long as no person other than the U.S. Borrower or a wholly owned Subsidiary of any Borrower receives any consideration, (ii) the merger or consolidation of any Subsidiary may (other than the Co-Borrowerx) merge into or consolidate with any other Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any considerationSubsidiary, (iiiy) the merger liquidate or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor dissolve into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (viz) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing dispose of all or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each substantially all of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower its assets to any other Subsidiary, including without limitationin each case, so long as no person other than the U.S. 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, or transferee in, such transaction shall be a Loan Party, and provided further that, if both parties to any such transaction are Loan Parties, but one is Melody or an Investment Subsidiary, the surviving entity of, or transferee in, such transaction may not be Melody or such Investment Subsidiary), (iii) any Immaterial Subsidiary may be liquidated or dissolved and (iv) the U.S. Borrower and the Subsidiaries may make Permitted Vessel Transfer;Acquisitions.
(db) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, engage in any other Asset Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;except:
(i) leases(A) any such Asset Sale the consideration for which is at least 80% cash, charters or licenses (on a non-exclusive basis with respect B) such consideration is at least equal to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory fair market value of the Company assets being sold, transferred, leased or any Subsidiary determined by the management disposed of, and (C) except for sales of the Company to be no longer useful Equity Interests of Savills plc, the fair market value of all assets sold, transferred, leased or necessary in the operation disposed of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that this clause (i) at least [*]shall not exceed in any fiscal year 5% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the preceding fiscal quarter immediately prior year;
(ii) sales by the U.S. Borrower or the Subsidiaries of brokerage offices, or transfers of the assets of brokerage offices and related assets, to joint ventures in the date ordinary course of business; and
(iii) sales of Receivables pursuant to a Receivables Securitization; provided that (x) the material terms and conditions and the structure of such exchange for which financial statements Receivables Securitization have been delivered pursuant to Section 5.04, approved by the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect (such approval not to such fair market value and (iiibe unreasonably withheld or delayed) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration Receivables Securitization Amount outstanding at any time in respect of all Receivables Securitizations does not exceed $100,000,000 (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of Receivables Securitization meeting the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) criteria of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iiiSection 6.04(b)(iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply being referred to any individual transaction or series of related transactions involving assets with herein as a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii“Permitted Receivables Securitization”), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company Borrower or any SubsidiarySubsidiary or preferred equity interests 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 personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, supplies, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company Borrower or any Subsidiary Subsidiary, (ii) the sale of an 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 Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than a the Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (other than the Borrower) or change in form of entity of the Borrower or any Subsidiary (other than a Borrower) if the Company Borrower determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of the Co-Borrower to any other SubsidiaryBorrower, including without limitation, a Permitted Vessel Transfer3.75% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments Dividends permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of the Borrower, 3.75% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, provided further that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a the Borrower, such the Borrower is the surviving corporationcorporation and (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Loan Party that is a Wholly Owned Subsidiary;
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Borrower or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) abandonment, cancellation or disposition of any intellectual property of the Borrower in the ordinary course of business,
(l) the sale of the facility located at Plaistow, New Hampshire, and
(m) sales, leases or other dispositions of inventory of the Company or any Subsidiary Borrower and its Subsidiaries determined by the management of the Company Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any Loan Party or Subsidiaryof the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(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) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) Holdings or the Borrower may, subject to clause (ii) and so long as no Event of Default shall have occurred and be continuing or would result therefrom, sell, grant or otherwise issue Equity Interests to members of management of Holdings or the Borrower pursuant to stock option, stock ownership, stock incentive or similar plans, (ii) Holdings shall at all times own, directly or indirectly, at least 80% of the Equity Interests of the Borrower, (iii) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) hereof) unless such disposition is for fair market value, (iiiv) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d), (f) or (d(k) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iiiv) no sale, transfer or other disposition of assets in excess of U.S.$5.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions for purposes of clause (ii) or clauses (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iiiiv), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the CompanyBorrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any the Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a the Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a the Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a the Subsidiary Guarantor into or with any other Subsidiary that is not a the Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a the Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a the Borrower, such the Borrower is the surviving corporation;
(i) leases, charters or licenses (on a non-exclusive non‑exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive non‑exclusive basis with respect to intellectual property), of any property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash non‑cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a the Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease lease, license or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquiredacquired or arising), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory or the sale of receivables pursuant to nonrecourse factoring arrangements, in each case in the ordinary course of business by the Company Dutch Borrower or any Subsidiary Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of an any other asset in the ordinary course of business by the Dutch Borrower or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Dutch Borrower or any substantial part Subsidiary or (iv) the sale or disposition of the assets or other property of any other person, so long as such acquisition is Permitted Investments in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger merger, consolidation or amalgamation of any Subsidiary (other than into or with the Co-Borrower) into a Dutch Borrower in a transaction in which such the Dutch Borrower is the survivor, (ii) the merger merger, consolidation or consolidation amalgamation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a the Dutch Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger merger, consolidation or consolidation amalgamation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) Subsidiary, if the Company Dutch Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Dutch Borrower and is not materially disadvantageous to Lendersthe Lenders and the assets of such Subsidiary, if a Subsidiary Loan Party, are distributed to the Dutch Borrower or a Subsidiary Loan Party or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition may merge, consolidate or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder amalgamate into or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.105.11;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(ed) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments Restricted Payments permitted by Section 6.06;
(fe) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transactionfinancing;
(gf) sales, transfers, leases leases, licenses 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))6.05; provided, provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.12(b);
(hg) Permitted Business Acquisitions (including any merger merger, consolidation or consolidation amalgamation in order to effect a Permitted Business Acquisition); provided, provided that following any such merger merger, consolidation or consolidation amalgamation involving a the Dutch Borrower, such the Dutch Borrower is shall be the surviving corporationentity;
(ih) leases, charters or licenses (on a non-exclusive basis with respect to intellectual property)licenses, 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; provided that in the case of Intellectual Property, such licenses or sublicenses are non-exclusive;
(ji) sales, leases or other dispositions of inventory or dispositions or abandonment of Intellectual Property of the Company or any Subsidiary Dutch Borrower and the Subsidiaries in its reasonable business judgment has determined by the management of the Company Dutch Borrower to be no longer useful or necessary in the operation of the business of Dutch Borrower or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reserved];
(mj) any exchange of assets for services and/or other assets of comparable or greater valuevalue or usefulness to the business of the Dutch Borrower and the Subsidiaries as a whole; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% 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, (Cii) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company Dutch Borrower shall be in Pro Forma Compliance, Compliance and (Diii) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b2.12(b);
(nk) any disposition in the ordinary course of any assets owned by any New Vessel Subsidiary business, including dispositions of Investments in joint ventures to the extent required by, or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for made pursuant to buy/sell arrangements between the purposes for which such cash was raised or borrowedjoint venture parties set forth in joint venture arrangements and similar binding arrangements. Notwithstanding anything to the contrary contained above in Section 6.05 abovethis Section 6.05, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, licenses or other dispositions to Loan Parties or pursuant to paragraph (cSection 6.05(a)(ii), (b), (d), (e), (h), (i) hereofand (l)) unless such disposition is for fair market value, value (as determined in good faith by Dutch Borrower and (ii) no sale, transfer or other disposition of assets in excess of $10,000,000 shall be permitted by paragraph (a(a)(i), (c) or (d(f) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iiiexcept to a Loan Party) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iiiii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the CompanyDutch Borrower’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) (other than liabilities that is are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cash, and (b) any notes or other obligations or other securities or assets received by the Company Dutch Borrower or such Subsidiary from the such transferee that are converted by the Company Dutch Borrower or such Subsidiary into cash within 180 days after of the receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined shall, in good faith by the Company)each case, 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other than the Dutch Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by such Loan Party will not be so released), and the Administrative Agent or Collateral Agent shall take, and is hereby authorized by each Lender to take, any actions reasonably requested by Dutch Borrower in order to evidence the foregoing subject to the receipt of a certification by Dutch Borrower stating that such transaction is in compliance with the Credit Agreement and the other Loan Documents and as to such other matters as the Administrative Agent or Collateral Agent may reasonably request.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other 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, including effected pursuant to a Delaware LLC Division) all or any part of its substantially all the assets (whether now owned or hereafter acquired), ) of the Borrower or issue, sell, transfer or otherwise dispose of any less than all the Equity Interests of any Subsidiary (if the Company or Fair Market Value of the Equity Interests so disposed of, when combined with all the investments permitted pursuant to clause (B) set forth in the proviso to Section 6.04(a) and then outstanding, exceed $10,000,000 at any Subsidiarytime), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson (unless permitted pursuant to Section 6.10, constituting a contribution of assets of such Person to the Borrower or having a Fair Market Value not in excess of $5,000,000), except that this Section shall not prohibit:
(a) (i) any disposal by the Company or Borrower and any Subsidiary of an asset or other property may purchase and sell inventory and capacity energy and ancillary services in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other personmay make investments permitted under Section 6.04 and Restricted Payments permitted under Section 6.06, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (iy) the merger of any Subsidiary (other than may merge or dissolve into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, surviving entity and (iiz) the merger or consolidation of any Subsidiary (other than the Co-Borrower) may merge or dissolve into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or consolidate with any other Subsidiary (provided that if any party to any such transaction is not a Subsidiary GuarantorLoan Party, the surviving entity of such transaction shall be a Loan Party), (iv) the liquidation or dissolution or change in form of entity of connection with any Asset Sale permitted under clause (b) below, any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous Borrower may dissolve, liquidate, consolidate or merge with or into any other Person or permit any other Person to Lendersmerge into or consolidate with it, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) in connection with respect any investment permitted under Section 6.04, any Subsidiary may merge or dissolve into or consolidate with any other Person or permit any other Person to any merge or dissolve into or consolidate with it; provided that the Person surviving such exchange with aggregate gross consideration in excess of the greater of (x) $[*] merger, dissolution or consolidation shall be a Subsidiary Guarantor and (yvi) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04any Immaterial Subsidiary may dissolve, immediately after giving effect theretoliquidate, the Company shall be in Pro Forma Compliancewind up, and (D) the Net Proceeds, if any, thereof are applied in accordance consolidate or merge with Section 2.11(b);or into any other Subsidiary.
(nb) Make any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
Asset Sale (oincluding those otherwise permitted under paragraph (a) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section 6.05 above, ) unless (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition Asset Sale is for fair market valueconsideration at least 75% of which is cash, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition consideration is for at least 75% cash consideration equal to the Fair Market Value of the assets being sold, transferred, leased or disposed of and (iii) no salethe Fair Market Value of all assets sold, transfer transferred, leased or other disposition disposed of assets shall be permitted by pursuant to this paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iiib) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets exceed in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness 15% of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent value of the cash received) shall be deemed to be cash total net assets of Intermediate Holdings, the Borrower and the Subsidiaries as of the Closing Date.
(c) any Designated Non-Cash Consideration received by Consummate the Company or any of its Subsidiaries having GasCo Equity Sale other than for consideration in an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior amount equal to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 cashFair Market Value thereof.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary or preferred equity interests of the Company (except to the extent that no cash interest or any Subsidiaryother cash payments are required in respect thereof), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, supplies, services, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company or any Subsidiary Subsidiary, (ii) the sale of an any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) (A) the merger or consolidation of any Subsidiary into the Company in a transaction in which the Company is the surviving corporation or (other than B) the Co-Borrower) merger or consolidation of any Subsidiary that is not a Loan Party into a any Foreign Borrower in a transaction in which such Foreign Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Domestic Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Domestic Loan Party and, in the case of each of clauses (ii)(A) and (ii), no person Person other than a Borrower the Company or a Subsidiary Guarantor Domestic Loan Party receives any consideration or, in the case of clause (i)(B), no Person other than the applicable Foreign Borrower receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (other than the Borrowers) or change in form of entity of the Company or any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Domestic Loan Party to a Subsidiary Guarantor that is not a Domestic Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of the Co-Borrower to any other SubsidiaryCompany, including without limitation, a Permitted Vessel TransferU.S.$50.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments repurchases of Equity Interests permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings and in connection with a Permitted Supplier Finance Facility;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases 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))6.05; provided, provided that the Net Proceeds thereof are applied aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in accordance with Section 2.11(b)reliance upon this paragraph (h) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the Company, U.S.$50.0 million;
(hi) Permitted Business Acquisitions (including any purchase, lease, or other acquisition of assets, or any merger or consolidation consolidation, in order to effect each case in connection with a Permitted Business AcquisitionAcquisition permitted under Section 6.04(j); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporationcorporation and (ii) involving any Domestic Loan Party other than the Company, the surviving or resulting entity shall be a Domestic Loan Party that is a Wholly Owned Subsidiary;
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Company or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) abandonment, cancellation or disposition of any intellectual property of the Borrowers in the ordinary course of business;
(l) the sale of the land owned by a Domestic Loan Party in Plaistow, New Hampshire and the sale of the facility owned by a Domestic Loan Party in Denver, Colorado;
(m) sales, leases or other dispositions of inventory of the Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)Subsidiaries;
(n) any disposition factoring of any assets owned receivables held by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vesselthe Company and its Subsidiaries as permitted under Section 6.01(t); and
(o) disposals of cash raised or borrowed for asset sales, mergers, consolidations and acquisitions made in connection with the purposes for which such cash was raised or borrowedPermitted Foreign Restructuring. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) or (o) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d), (f) or (d(k) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets in excess of U.S.$10.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiii) and (ii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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), including effected pursuant to a Delaware LLC Division) all or any part substantially all of its the Plant, all or substantially all the assets (whether now owned or hereafter acquired), ) of the Borrower or issue, sell, transfer or otherwise dispose of any less than all the Equity Interests of the Company or any SubsidiarySubsidiary 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 personPerson, except that this Section shall not prohibitthat:
(a) (i) any disposal by Holdings, the Company or Borrower and any Subsidiary of an asset or other property may purchase and sell inventory in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s 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 or would result therefrom, (ix) the merger any solvent Wholly Owned Subsidiary of any Subsidiary Holdings (other than the Co-Borrower) may merge into a Holdings or the Borrower in a transaction in which such Holdings or the Borrower is the survivorsurviving corporation, (iiy) the merger or consolidation of any solvent Wholly Owned Subsidiary (other than the Co-Borrower) may merge into or consolidate with any other solvent Wholly Owned Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Wholly Owned Subsidiary Guarantorand 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) a Loan Party, the surviving entity of such transaction shall be a Loan Party, and (B) the Borrower, the surviving entity of such transaction shall be the Borrower) and (z) Holdings, the Borrower and the Subsidiary Guarantors may make Permitted Acquisitions; and
(iii) acquisitions (in one transaction or a series of transactions) of all or any substantial part of the assets of any other Person made pursuant to Sections 6.04(a)(iii), in the case of each of clauses 6.04(a)(iv), and 6.04(j).
(b) Make any Asset Sale not otherwise prohibited under paragraph (a) above unless (i) and 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, no person other than a Borrower transferred, or a Subsidiary Guarantor receives any consideration, disposed of and (iii) the merger fair market value of all assets sold, transferred, or consolidation disposed of pursuant to this paragraph (b) shall not exceed $1,000,000 in any Subsidiary fiscal year (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted Asset Sales pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (avii) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(bterm);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Rentech Inc /Co/)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company any Borrower or any Subsidiary or preferred equity interests of any Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) the purchase and sale of inventory, supplies, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by any disposal by the Company Borrower or any Subsidiary Subsidiary, (ii) the sale of an any other asset in the ordinary course of business by any Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) business by any Loan Party or Subsidiary of all Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) (i) the merger or consolidation of any Subsidiary that is not a Loan Party into or with any other Subsidiary that is not a Loan Party and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (iA) the merger of any Subsidiary (other than into the Co-Borrower) into a U.S. Borrower in a transaction in which such the U.S. Borrower is the survivorsurviving corporation, (iiB) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (iA) and (iiB), no person Person other than a the U.S. Borrower or a Subsidiary Guarantor Loan Party receives any consideration, or (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (ivC) the liquidation or dissolution (other than of any Borrower) or change in form of entity of any Borrower or any Subsidiary (other than a Borrower) if the Company U.S. Borrower determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Borrowers and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party a Borrower or by any Subsidiary that is not a Subsidiary Guarantor (upon voluntary liquidation or the Co-Borrower to otherwise); provided that any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets by a Loan Party to a Subsidiary that is not otherwise permitted by this a Loan Party shall be made in compliance with Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c))6.07; provided, provided further that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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), aggregate gross proceeds of any property in the ordinary course of business;
(j) sales, transfers, leases or other dispositions of inventory by a Loan Party to a Subsidiary that is not a Loan Party in reliance upon this paragraph (c) shall not exceed, in any fiscal year of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunderU.S. Borrower, (ii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]2.00% of Consolidated Total Assets as of the end of the immediately preceding fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)year;
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Dresser Inc)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substan- tially all of the assets of assets, or a division of, any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Holdings or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s business by Holdings or any Subsidiary’s business, (iiiv) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is leases and subleases in the ordinary course of such Loan Party’s business by Holdings or Subsidiary’s business, any Subsidiary or (iiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a Domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person Person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Holdings determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Holdings and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases leases, issuances or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases, issuances or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided, further, that the aggregate gross proceeds of any sales, transfers, leases, issuances or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Domestic Subsidiary Loan Party in reliance upon this paragraph (c) (other than any thereof made by a Foreign Subsidiary Loan Party to another Foreign Subsidiary Loan Party) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the Co-Borrower to end of the immediately preceding fiscal year; provided that for any other Subsidiarygiven fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, including without limitationin the event of any such carryover, a Permitted Vessel Transferassets sales in such fiscal year will be deducted first from the carried over amount;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, dividends and distributions and other payments permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases leases, issuances (to the extent of all of the Equity Interests in a Person then owned by Holdings and its Subsidiaries) or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all such sales, transfers, leases, issuances or dispositions made in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that for any given fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, in the event of any such carryover, assets sales in such fiscal year will be deducted first from the carried over amount; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary Loan Party, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary Loan Party, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary; provided, further, that (1) mergers or consolidations in connection with a Permitted Business Acquisition where the acquired Person does not become a Guarantor or the assets acquired are not owned by a Loan Party shall be subject to the limitation set forth in the proviso to Section 6.04(b), and (2) all mergers and consolidations pursuant to this Section 6.05(i) shall be subject to the provisos to Sections 6.04(m) and (o);
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Company or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) sales, leases or other dispositions of inventory of the Company or any Subsidiary Holdings and its Subsidiaries determined by the management of Holdings or the Company to be no longer useful or necessary in the operation of the business of Holdings or any Loan Party or Subsidiaryof the Subsidiaries;
(l) the sale of the performance products business of Nutrinova; provided that the Net Proceeds thereof of such sale are applied in accordance with Section 2.11(b2.11(c);
(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) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater valuethe Designated Asset Sales; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date Net Proceeds of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof sales are applied in accordance with Section 2.11(b2.11(c);; and
(n) any disposition (i) the Fraport Transaction, (ii) the sale-leaseback of any assets owned by any New Vessel Subsidiary facilities acquired or constructed in replacement of any Vessel that is not a Mortgaged Vessel; and
the facilities transferred in connection with the Fraport Transaction and (oiii) disposals the sale of cash raised or borrowed for receivables generated pursuant to the purposes for which such cash was raised or borrowedFraport Transaction. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no action shall be permitted which results in a Change of Control under clause (a) of the definition thereof, (ii) the Company shall at all times own directly (or to the extent all direct and indirect owners of the Equity Interests of CAC (other than the Company) are Domestic Subsidiary Loan Parties, indirectly) 100% of the Equity Interests of CAC, (iii) neither Holdings nor any Subsidiary that owns Equity Interests in any Borrower or in any other Subsidiary that directly owns Equity Interests in any Borrower shall sell, dispose of, gxxxx x Xxxx on or otherwise transfer such Equity Interests in such Borrower or in such Subsidiary, as applicable, (iv) each Foreign Subsidiary that is a Revolving Borrower shall be a Wholly Owned Subsidiary, (v) no sale, transfer transfer, lease, issuance or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, issuances or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) or (to the extent made to Holdings or a Wholly Owned Subsidiary) (j) hereof) unless such disposition is for fair market value, (iivi) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d) or (d(l) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iiivii) no sale, transfer or other disposition of assets in excess of $10.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiivi) and (vii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Celanese CORP)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into into, divide or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, allocate, divide lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all of any division, unit or any substantial part of the assets business of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the lease, purchase and sale of inventory in the ordinary course of business by the Company Borrower or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto thereafter no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of (x) any Domestic Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary GuarantorLoan Party or (y) any Foreign Subsidiary into or with any Foreign Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Foreign Subsidiary Loan Party, and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Borrower, Subsidiary Loan Party or a Foreign Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.or
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into into, amalgamate with or consolidate with any other personPerson, or permit any other person Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company a Loan Party or any Subsidiarypreferred equity interests of a Loan Party, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company Loan Party, (ii) the sale of any other asset in the ordinary course of business by a Loan Party, (iii) the sale of surplus, obsolete or any Subsidiary of an asset worn out equipment or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or business by a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger or consolidation of any Subsidiary (other than of the Co-Borrower) Borrower into a the Borrower in a transaction in which such the Borrower is the survivorsurviving entity, (ii) the merger or consolidation of any Subsidiary (other than of the Co-Borrower) Borrower into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any considerationLoan Party, (iii) the merger merger, amalgamation or consolidation of any Subsidiary (other than of the Co-Borrower) Borrower that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary of the Borrower that is not a Subsidiary GuarantorLoan Party, or (iv) the liquidation liquidation, winding up, or dissolution of any Subsidiary of the Borrower or (v) the change in form of entity of the Borrower or any Subsidiary (other than a Borrower) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to Lendersthe Lenders taken as a whole; for the avoidance of doubt it is agreed that [Frank’s International Trinidad Unlimited], (v) any disposition to effect [Frank’s International Ecuador, C.A.] and [Frank’s International Venezuela 2] may change their form of entity after the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10Closing Date;
(c) sales, transfers, leases or other dispositions to any Loan Party the Borrower or by a Subsidiary of the Borrower (upon voluntary liquidation or otherwise); provided that if as a result thereof any Subsidiary that is not previously a Material Subsidiary Guarantor or the Co-Borrower to any other becomes a Material Subsidiary, including without limitation, a Permitted Vessel Transfersuch Subsidiary complies with the provisions of Section 5.10(b);
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments dividends permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary6.05; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
aggregate gross proceeds (kincluding noncash proceeds) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (ag) shall not exceed, in any fiscal year of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunderBorrower, (ii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]10.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04year; and provided further that after giving effect thereto, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements shall have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)occurred;
(nh) any disposition merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation and (ii) involving a Subsidiary, the surviving or resulting entity shall be a Subsidiary;
(i) licensing and cross-licensing arrangements involving any technology or other intellectual property of any assets owned by any New Vessel Subsidiary or Loan Party in the ordinary course of any Vessel that is not a Mortgaged Vesselbusiness; and
(oj) disposals abandonment, cancellation or disposition of cash raised or borrowed for any intellectual property of any Loan Party in the purposes for which such cash was raised or borrowedordinary course of business. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) the Borrower may, so long as no saleEvent of Default shall have occurred and be continuing or would result therefrom, transfer sell, grant or other disposition otherwise issue Equity Interests to members of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases management of the Borrower or other dispositions to Loan Parties any of the Subsidiaries of the Borrower pursuant to paragraph (c) hereof) unless such disposition is for fair market valuestock option, stock ownership, stock incentive or similar plans, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to the Borrower or any of its Subsidiaries pursuant to paragraph (a(c) or (dhereof) of this Section 6.05 unless such disposition is for at least 75% cash consideration and fair market value, (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g(a) or (d) of this Section Section 6.05 unless such disposition is for at least 7551% cash consideration and (iv) no sale, transfer or other disposition of assets in excess of U.S. $10,000,000 shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 51% cash consideration; provided that the provisions for purposes of clause (ii) or clauses (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iiiiv), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary of the Borrower that is not a Loan Party (as shown on the CompanyBorrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Revolving Credit Agreement (Frank's International N.V.)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into into, divide or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, allocate, divide lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all of any division, unit or any substantial part of the assets business of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the lease, purchase and sale of inventory in the ordinary course of business by the Company Borrower or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto thereafter no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of (x) any Domestic Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary GuarantorLoan Party or (y) any Foreign Subsidiary into or with any Foreign Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Foreign Subsidiary Loan Party, and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Borrower, Subsidiary Loan Party or a Foreign Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) in accordance with Section 5.01(a)(ii) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form or dissolution is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor Loan Party shall be made in compliance with Section 6.07 and the aggregate gross proceeds of any such sales, transfers, leases or other dispositions plus the Co-Borrower to aggregate gross proceeds of any other Subsidiaryor all assets sold, including without limitation, a Permitted Vessel Transfertransferred or leased in reliance upon paragraph (h) below shall not exceed $20,000,00035,000,000;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments Dividends permitted by Section 6.06;
(f) any swap of assets with a Fair Market Value not to exceed $10,000,000 in the aggregate during the term of this Agreement in exchange for other assets of comparable or greater value or usefulness to the business of the Borrower and the Subsidiaries taken as a whole, as determined in good faith by the management of the Borrower, provided that (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) for the avoidance of doubt, such swap of assets shall not, directly or indirectly, be made for the purposes of making a Dividend not otherwise permitted under Section 6.06 or Junior Indebtedness Payment not otherwise permitted under Section 6.09(b);
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) (i) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided, that the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (h)(i) plus the aggregate gross amount of such proceeds in reliance upon Section 6.05(c) above shall not exceed $20,000,00050,000,000; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b); and (ii) dispositions of the assets or Equity Interests of any Material Insurance Subsidiary; provided, that (i) such sales and dispositions are for Fair Market Value, (ii) such disposition is for 85% cash consideration, to a third party that is not an Affiliate upon terms no less favorable to the Borrower or such Subsidiary, as applicable, than would otherwise be obtained in a comparable arm’s-length transaction, (iii) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (iv) the Total Secured Leverage Ratio shall not exceed the lesser of (x) 5.275 to 1.00 and (y) the Total Secured Leverage Ratio immediately prior to giving effect to such disposition and the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower to such effect, together with all relevant financial information for such Subsidiary or assets; provided that solely for purposespurpose of the Bridges Sale, the Total Secured Leverage Ratio shall be calculated net of the Unrestricted Cash proceeds received thereof (it being agreed that any cash proceeds received and deposited into the escrow account (or required other account) described in the proviso below shall be deemed Unrestricted Cash for purposes of calculating the Total Secured Leverage Ratio in connection with the Bridges Sale), and (v) the Net Proceeds thereof (which shall not be subject to be included a reinvestment right other than as set forth below in this clause (gh)) are applied in accordance with Section 2.11(b) and subject to the Prepayment Fees in respect of COC Payment Events pursuant to Section 6.05(c2.12(e); provided that notwithstanding the foregoing, the Borrower and its Subsidiaries can retain up to $50,000,000 of Net Proceeds from the Bridges Sale as long as such amount is held in an escrow account (or such other account satisfactory to the Administrative Agent) subject to the sole control of the Administrative Agent which account shall be established promptly upon the receipt of the Net Proceeds, but in no event to exceed 30 days following receipt unless the Administrative Agent consents in its sole discretion), with such proceeds only being released to the Borrower and its Subsidiaries (i) with the consent of the Administrative Agent, if used to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Borrower and the Loan Parties or to make investments in Permitted Business Acquisitions or Investments permitted by Section 6.04, (ii) with the consent of the Administrative Agent or (iii) if used to prepay Term Loans together with a premium equal to 3.00% of the aggregate principal amount being prepaid; provided further, if there are any amounts remaining in such escrow account on the date that is nine months after receipt of such Net Proceeds, thenFifth Amendment Effective Date, then the Borrower will use such amounts will be usedon the Fifth Amendment Effective Date to prepay Term Loans together with awithout paying any Prepayment Fee or other premium equal to 3.00% of the aggregate principal amount being prepaidor penalty.
(i) any Permitted Business Acquisition or merger or consolidation in order to effect a Permitted Business Acquisition; provided, that following any such merger or consolidation (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(j) non-exclusive licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary in the ordinary course of business and other licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary that are not material to the conduct of any of the business lines of the Borrower and the Subsidiaries, that do not materially interfere with the ordinary course of the business of the Borrower or any of its Subsidiaries and the value of which does not constitute a material portion of the assets of the Borrower and its Subsidiaries, taken as a whole, and that are not material to the ordinary course of conduct of the business of the Borrower or any of its Subsidiaries;
(k) the lease, assignment or sublease of any real or personal property in the ordinary course of business; and
(l) sales, leases or other dispositions of inventory, equipment or other assets (excluding Equity Interests, assets constituting a business division, unit, line of business, all or substantially all of the assets of any Material Subsidiary, Sale and Lease-Back Transactions and receivables) of the Borrower and the Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries; provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions except as permitted to Loan Parties pursuant to paragraph (c) hereofSection 6.05(c)) unless such disposition is for fair market valueFair Market Value, and (ii) no sale, transfer or other disposition of assets with a Fair Market Value of more than $2,000,000 shall be permitted by paragraph (a) or (d(a), (d), (h),or (I) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iiiii), (a) the amount of any secured Indebtedness of the Company Borrower or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the CompanyBorrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit::
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Borrower or any Subsidiary Subsidiary, (ii) the acquisition of an 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 Company’s Borrower or any Subsidiary’s business, (iiiv) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets sale, lease or other property disposition of any land in connection with the development and construction thereof, (v) the purchase and sale of inventory, cash, cash equivalents and other personcash management investments, so long as such acquisition is in each case in the ordinary course of such Loan Party’s or Subsidiary’s business, business or (iiivi) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivorsurviving entity, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a Subsidiary Guarantor Loan Party receives any considerationconsideration that is not permitted by Section 6.04, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) any merger or consolidation of another person with or into the Borrower or a Subsidiary if the Borrower or such Subsidiary, as applicable, is the survivor and such merger or consolidation is effected in order to purchase the assets of such other person and the purchase of such assets is permitted hereunder (and such transaction is treated as a purchase of such assets for purposes of determining compliance with the other applicable provisions of this Agreement) or (v) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the liquidation or dissolution of the Borrower) if the Company Borrower or such Subsidiary determines in good faith that such liquidation, liquidation or dissolution or change in form of entity is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise), provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan Party shall be made in compliance with Sections 6.04 and 6.07;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments Liens permitted by Section 6.066.02, dividends, distributions, redemptions, purchases and the like permitted by Section 6.06 and acquisitions of assets that constitute Capital Expenditures permitted by Section 6.10;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 6.05, provided that, after giving effect to each such sale, transfer, lease or other disposition, the aggregate gross proceeds (including noncash proceeds) of any or required to be included all assets sold, transferred, leased or otherwise disposed of in reliance upon this clause paragraph (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b)(excluding Non-Core Assets and developed hotel sites) shall not exceed $50,000,000;
(h) Permitted Business Acquisitions leases entered into (as lessor) in the ordinary course of business (including any merger or consolidation hotel site leases) (and the Collateral Agent shall be authorized in order its discretion to effect a Permitted Business Acquisitionenter into subordination non-disturbance agreements with respect to such leases); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leasesthe issuance by any Subsidiary of additional Equity Interests to the Borrower, charters a Subsidiary or licenses (the holders of its existing Equity Interests; provided that to the extent such transaction results in a reduction in the direct or indirect ownership interest of the Borrower in the issuing Subsidiary, such transaction shall be treated as a disposition of assets by the Borrower the permission for which must be based on a nondifferent paragraph of this Section 6.05;
(j) licensing and cross-exclusive basis with respect to licensing arrangements involving any technology or other intellectual property), property of the Borrower or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) sales, leases or other dispositions of inventory land to governmental authorities such as the Florida Department of the Company Transportation for road widening or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiaryroadway changes; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;and
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% without limiting the generality of the consideration received foregoing, licensing arrangements involving any Intellectual Property Rights so long as such license permits the continued use of such Intellectual Property Rights by the transferor consists of assets that will be used Borrower in a business or business activity permitted hereunder, connection with the Theme Parks (ii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date extent necessary or desirable in connection therewith) and could not materially and adversely affect or impair the value to the Borrower of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowedIntellectual Property Rights. 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 Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof) unless such disposition is for fair market value, (ii) no at least 75% of the proceeds of any sale, transfer or other disposition of assets shall be permitted by paragraph (aCore Assets pursuant to clause (a), (d) or (d(g) of this Section Section 6.05 unless such disposition is for at least 75% must be received in cash consideration and (iii) no salethe aggregate amount of non-cash consideration that may be outstanding as a result of all sales, transfer transfers or other disposition dispositions of assets shall be permitted by paragraph (gNon-Core Assets pursuant to clause (a), (d) or (g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than exceed $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided50,000,000, further, provided that for purposes of determining compliance with this clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets non-cash consideration outstanding shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (reduced to the extent any such non-cash consideration is subsequently received in (or sold or otherwise disposed of the cash receivedfor) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any the Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a the Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a the Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a the Subsidiary Guarantor into or with any other Subsidiary that is not a the Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a the Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a the Borrower, such the Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a the Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] ]million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired, including, without limitation, customer contracts), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the lease, purchase or sale of inventory or excess transponder capacity in the ordinary course of business by the Company Borrower or any Subsidiary Subsidiary; provided that the proceeds of an any such sale of excess transponder capacity shall be included as revenue in the consolidated statement of operations of the Borrower or such 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 Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) if the Company Borrower determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor Loan Party shall be made in compliance with Section 6.07; provided, further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance upon this paragraph (c) and the Co-Borrower to aggregate gross proceeds of any other Subsidiaryor all assets sold, including without limitationtransferred or leased in reliance upon paragraph (k) below shall not exceed, a Permitted Vessel Transferin any fiscal year of the Borrower, $75.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments Dividends permitted by Section 6.06;
(f) any sale or other absolute transfer of accounts receivable and related assets of the type specified in the definition of “Receivables Financing” (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Financing;
(g) any Event of Loss;
(h) any disposition of assets pursuant to the Equipment Financing Agreements;
(i) any swap (i) of owned or leased satellite transponder capacity for other satellite transponder capacity of comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in good faith by senior management or the Board of Directors or the managing member of the Borrower, which in the event of a swap with a Fair Market Value in excess of (x) $10.0 million shall be evidenced by a certificate from a Financial Officer of the Borrower and (y) $25.0 million shall be set forth in a resolution approved in good faith by at least a majority of the Board of Directors or the managing member of the Borrower or (ii) of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in good faith by senior management or the Board of Directors or managing member of the Borrower, which in the event of a swap with a Fair Market Value in excess of (x) $10.0 million shall be evidenced by a certificate from a Financial Officer of the Borrower and (y) $25.0 million shall be set forth in a resolution approved in good faith by at least a majority of the Board of Directors of the Borrower or the managing member;
(j) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gk) sales, transfers, leases or other dispositions of assets (including any such transfer of excess transponder capacity not permitted under paragraph (a) above) not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (k) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c)); providedany fiscal year of the Borrower, $75.0 million provided further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(hl) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a the Borrower, such 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;
(im) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Borrower or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jn) sales, leases or other dispositions of inventory of the Company or any Subsidiary Borrower and its Subsidiaries determined by the management of the Company Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any Loan Party or Subsidiary; of the Subsidiaries provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);; and
(ko) 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) [reserved];
(m) any exchange sales of assets for services and/or other assets of comparable or greater value; described on Schedule 6.05, provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, Proceeds thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof) unless such disposition is for fair market valueFair Market Value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d) or (d(n) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g(k) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions for purposes of clause clauses (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the CompanyBorrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of assets, or a division of, any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Holdings or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s business by Holdings or any Subsidiary’s business, (iiiv) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is leases and subleases in the ordinary course of such Loan Party’s business by Holdings or Subsidiary’s business, any Subsidiary or (iiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a Domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person Person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Holdings determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Holdings and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation merger or consolidation of any Subsidiary that is a Delaware Divided Celanese Holdings, LLC with and into Crystal Holdings 3 LLC (“Crystal 3”), its direct parent, and the immediate subsequent merger of Crystal 3, as surviving entity of such merger, with and into the Company, as described in the Amendment Agreement; provided that, for the avoidance of doubt, there shall be no release of the Guarantee of Celanese Holdings, LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries Holdings shall have complied with executed the requirements of Section 5.10Supplement to the Guarantee and Collateral Agreement as set forth in the Amendment Agreement;
(c) sales, transfers, leases leases, issuances or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases, issuances or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided, further, that the aggregate gross proceeds of any sales, transfers, leases, issuances or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Domestic Subsidiary Loan Party in reliance upon this paragraph (c) (other than any thereof made by a Foreign Subsidiary Loan Party to another Foreign Subsidiary Loan Party) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the Co-Borrower to end of the immediately preceding fiscal year; provided that for any other Subsidiarygiven fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, including without limitationin the event of any such carryover, a Permitted Vessel Transferassets sales in such fiscal year will be deducted first from the carried over amount;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.046.04 (including, Permitted Liensfor the avoidance of doubt, any transfers among Subsidiaries permitted pursuant to paragraphs (u), (v) and dividends(w) of Section 6.04 whether or not meeting the definition of “Investment”), Liens permitted by Section 6.02 and dividends and distributions and other payments permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases leases, issuances (to the extent of all of the Equity Interests in a Person then owned by Holdings and its Subsidiaries) or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all such sales, transfers, leases, issuances or dispositions made in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that for any given fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, in the event of any such carryover, assets sales in such fiscal year will be deducted first from the carried over amount; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary Loan Party, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary Loan Party, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary; provided, further, that (1) mergers or consolidations in connection with a Permitted Business Acquisition where the acquired Person does not become a Guarantor or the assets acquired are not owned by a Loan Party shall be subject to the limitation set forth in the proviso to Section 6.04(b), and (2) all mergers and consolidations pursuant to this Section 6.05(i) shall be subject to the provisos to Sections 6.04(m) and (o);
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Company or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) sales, leases or other dispositions of inventory of the Company or any Subsidiary Holdings and its Subsidiaries determined by the management of Holdings or the Company to be no longer useful or necessary in the operation of the business of Holdings or any Loan Party or Subsidiaryof the Subsidiaries;
(l) the sale of the performance products business of Nutrinova; provided that the Net Proceeds thereof of such sale are applied in accordance with Section 2.11(b2.11(c);
(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) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater valuethe Designated Asset Sales; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date Net Proceeds of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof sales are applied in accordance with Section 2.11(b2.11(c);; and
(n) any disposition (i) the Fraport Transaction, (ii) the sale-leaseback of any assets owned by any New Vessel Subsidiary facilities acquired or constructed in replacement of any Vessel that is not a Mortgaged Vessel; and
the facilities transferred in connection with the Fraport Transaction and (oiii) disposals the sale of cash raised or borrowed for receivables generated pursuant to the purposes for which such cash was raised or borrowedFraport Transaction. Notwithstanding anything to the contrary contained in Section this Section 6.05 above, (i) no action shall be permitted which results in a Change of Control under clause (a) of the definition thereof, (ii) the Company shall at all times own directly (or to the extent all direct and indirect owners of the Equity Interests of CALLC (other than the Company) are Domestic Subsidiary Loan Parties, indirectly) 100% of the Equity Interests of CALLC, (iii) neither Holdings nor any Subsidiary that owns Equity Interests in any Borrower or in any other Subsidiary that directly owns Equity Interests in any Borrower shall sell, dispose of, xxxxx x Xxxx on or otherwise transfer such Equity Interests in such Borrower or in such Subsidiary, as applicable, (iv) each Foreign Subsidiary that is a Revolving Borrower shall be a Wholly Owned Subsidiary, (v) no sale, transfer transfer, lease, issuance or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, issuances or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) or (to the extent made to Holdings or a Wholly Owned Subsidiary) (j) hereof) unless such disposition is for fair market valuevalue (provided that, for the avoidance of doubt, transfers referred to in paragraphs (u), (iiv) and (w) of Section 6.04 that are permitted by paragraph (e) of this Section 6.05 need only meet such fair market value requirement when taken as a whole, disregarding intermediate steps, in the case of transfers occurring in multiple steps), (vi) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d) or (d(l) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iiivii) no sale, transfer or other disposition of assets in excess of $10.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiivi) and (vii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Celanese 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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of Holdings, the Company BorrowerParent or any Subsidiaryother Subsidiary or preferred equity interests of Holdings, Parent or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and, lease, sublease or sale of inventory in the ordinary course of business by the Company HoldingsParent or any Subsidiary Subsidiary, (ii) the acquisition, lease or sublease of an any other asset in the ordinary course of business by Holdings Parent or any Subsidiary, (iii) the sale or other disposition of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) business by any Loan Party or Subsidiary of all HoldingsParent or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party (subject to clause (i) above) and, in the case of each of clauses (i) and (ii)) above, no person other than a the Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (other than the Borrower) if HoldingsParent determines in good faith that such liquidation or dissolution is in the best interests of HoldingsParent and is not materially disadvantageous to the Lenders or change in form of entity of HoldingsParent or any Subsidiary (other than a Borrower) if Subsidiary,; provided that, in the Company determines in good faith that case of any such liquidation, dissolution or change in form is in of entity, HoldingsParent shall give 30 days prior written notice to the best interests of Administrative Agent and the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests Collateral Agent of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10change;
(c) sales, transfers, leases or other dispositions to HoldingsParent or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided, further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of Holdings, 5.0Parent, 10.0% of Consolidated Total Assets as of the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transferend of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments Dividends permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of HoldingsParent, 7.5010.0% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a the Borrower, such the Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a domestic Loan Party that is a Wholly Owned Subsidiary of Holdings and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary of HoldingsParent;
(ij) leases, charters [intentionally omitted]; dispositions of Rebuild Equipment by either of the Rebuild Companies;
(k) licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Borrower or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jl) sales, leases leases, subleases or other dispositions of inventory of the Company Holdings, equipment, reserves or any Subsidiary other assets of Parent and its Subsidiaries determined by the management of HoldingsParent or the Company Borrower to be no longer useful or necessary in the operation of the business of HoldingsParent or any Loan Party or Subsidiaryof the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(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) [reserved];; and
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered transactions pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged VesselPermitted Gas Properties Transactions; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of assets, or a division of, any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Holdings or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s business by Holdings or any Subsidiary’s business, (iiiv) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is leases and subleases in the ordinary course of such Loan Party’s business by Holdings or Subsidiary’s business, any Subsidiary or (iiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a Domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person Person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party or, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Holdings determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Holdings and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation merger or consolidation of any Subsidiary that is a Delaware Divided Celanese Holdings, LLC with and into Crystal Holdings 3 LLC (“Crystal 3”), its direct parent, and the immediate subsequent merger of Crystal 3, as surviving entity of such merger, with and into the Company, as described in the Amendment Agreement; provided that, for the avoidance of doubt, there shall be no release of the Guarantee of Celanese Holdings, LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries Holdings shall have complied with executed the requirements of Section 5.10Supplement to the Guarantee and Collateral Agreement as set forth in the Amendment Agreement;
(c) sales, transfers, leases leases, issuances or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases, issuances or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided, further, that the aggregate gross proceeds of any sales, transfers, leases, issuances or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Domestic Subsidiary Loan Party in reliance upon this paragraph (c) (other than any thereof made by a Foreign Subsidiary Loan Party to another Foreign Subsidiary Loan Party) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the Co-Borrower to end of the immediately preceding fiscal year; provided that for any other Subsidiarygiven fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, including without limitationin the event of any such carryover, a Permitted Vessel Transferassets sales in such fiscal year will be deducted first from the carried over amount;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.046.04,6.04 (including, Permitted Liensfor the avoidance of doubt, any transfers among Subsidiaries permitted pursuant to paragraphs (u), (v) and dividends(w) of Section 6.04 whether or not meeting the definition of “Investment”), Liens permitted by Section 6.02 and dividends and distributions and other payments permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases leases, issuances (to the extent of all of the Equity Interests in a Person then owned by Holdings and its Subsidiaries) or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all such sales, transfers, leases, issuances or dispositions made in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that for any given fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, in the event of any such carryover, assets sales in such fiscal year will be deducted first from the carried over amount; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary Loan Party, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary Loan Party, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary; provided, further, that (1) mergers or consolidations in connection with a Permitted Business Acquisition where the acquired Person does not become a Guarantor or the assets acquired are not owned by a Loan Party shall be subject to the limitation set forth in the proviso to Section 6.04(b), and (2) all mergers and consolidations pursuant to this Section 6.05(i) shall be subject to the provisos to Sections 6.04(m) and (o);
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Company or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) sales, leases or other dispositions of inventory of the Company or any Subsidiary Holdings and its Subsidiaries determined by the management of Holdings or the Company to be no longer useful or necessary in the operation of the business of Holdings or any Loan Party or Subsidiaryof the Subsidiaries;
(l) the sale of the performance products business of Nutrinova; provided that the Net Proceeds thereof of such sale are applied in accordance with Section 2.11(b2.11(c);
(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) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater valuethe Designated Asset Sales; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date Net Proceeds of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof sales are applied in accordance with Section 2.11(b2.11(c);; and
(n) any disposition (i) the Fraport Transaction, (ii) the sale-leaseback of any assets owned by any New Vessel Subsidiary facilities acquired or constructed in replacement of any Vessel that is not a Mortgaged Vessel; and
the facilities transferred in connection with the Fraport Transaction and (oiii) disposals the sale of cash raised or borrowed for receivables generated pursuant to the purposes for which such cash was raised or borrowedFraport Transaction. Notwithstanding anything to the contrary contained in Section this Section 6.05 above, (i) no action shall be permitted which results in a Change of Control under clause (a) of the definition thereof, (ii) the Company shall at all times own directly (or to the extent all direct and indirect owners of the Equity Interests of CACCALLC (other than the Company) are Domestic Subsidiary Loan Parties, indirectly) 100% of the Equity Interests of CACCALLC, (iii) neither Holdings nor any Subsidiary that owns Equity Interests in any Borrower or in any other Subsidiary that directly owns Equity Interests in any Borrower shall sell, dispose of, xxxxx x Xxxx on or otherwise transfer such Equity Interests in such Borrower or in such Subsidiary, as applicable, (iv) each Foreign Subsidiary that is a Revolving Borrower shall be a Wholly Owned Subsidiary, (v) no sale, transfer transfer, lease, issuance or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, issuances or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) or (to the extent made to Holdings or a Wholly Owned Subsidiary) (j) hereof) unless such disposition is for fair market valuevalue (provided that, for the avoidance of doubt, transfers referred to in paragraphs (u), (iiv) and (w) of Section 6.04 that are permitted by paragraph (e) of this Section 6.05 need only meet such fair market value requirement when taken as a whole, disregarding intermediate steps, in the case of transfers occurring in multiple steps), (vi) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d) or (d(l) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iiivii) no sale, transfer or other disposition of assets in excess of $10.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiivi) and (vii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Amendment Agreement (Celanese 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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company 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 that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company or any Subsidiary Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of an any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower Company in a transaction in which such Borrower the Company is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Company or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrowerthe Company) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan Party shall be made in compliance with Section 6.07 and shall be included in Section 6.05(g);
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments Liens permitted by Section 6.066.02, Dividends permitted by Section 6.06 and purchases and leases permitted by Section 6.10;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that (i) the Net Proceeds thereof are applied aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in accordance with reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Company, the greater of $100.0 million and 8% 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 2.11(b)5.04, (ii) no Default or Event of Default exists or would result therefrom, (iii) immediately after giving effect thereto, the Revolving Facility Credit Exposure shall not exceed the Borrowing Base calculated on a pro forma basis after giving effect to such sale, transfer, lease or other disposition, and (iv) immediately after giving effect to any such sale, lease, transfer or other disposition of Accounts or Inventory not undertaken in the ordinary course of business, the Revolving Facility Credit Exposure shall not exceed the Borrowing Base;
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation (i) involving a Borrowerthe Company, such Borrower the Company 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, charters or 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 Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reservedReserved];; and
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided provided, that (i) at least [*]90% of the consideration received by the transferor consists of assets (other than cash) that will be used in a business or business activity permitted hereunder, (ii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.045.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0415.0 million, such exchange shall have been approved by at least a majority of the board of directors of Holdings or the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] 100.0 million and [*]8% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, and (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect theretoto such exchange, the Company Revolving Facility Credit Exposure shall be in Pro Forma Compliance, and (D) not exceed the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not Borrowing Base calculated on a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which pro forma basis after giving effect to such cash was raised or borrowedexchange. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets in excess of $5.0 million shall be permitted by paragraph (a) or (d(g) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (aA) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the Company’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company (other than liabilities that is are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cashassets, (bB) any notes or other obligations or other securities or assets received by the Company or such Subsidiary of the Company from the such transferee that are converted by the Company or such Subsidiary of the Company into cash within 180 days after of the receipt thereof (to the extent of the cash received) shall be deemed to be cash ), and (cC) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (cC) that is at that time outstanding, not to exceed the greater of $[*] million and [*]3.0% of Consolidated Total Assets as and $35 million at the time of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 as expressly permitted by this Section 6.05 as to any Person other than Holdings, the Company 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 Company in order to evidence the foregoing. Anything contained herein to the contrary notwithstanding, (A) neither the Company nor any other Loan Party shall sell or otherwise dispose of any Inventory or Accounts (other than sales of Inventory in the ordinary course of business and sales of Accounts for collection) if, as a result of such sale or other disposition, the Revolving Facility Credit Exposure would exceed the Borrowing Base, in each case determined as of the time of such sale or other disposition, and (B) none of the capital stock of any Borrower shall be sold or transferred, nor shall any Borrower enter into any merger or similar transaction in which such Borrower is not the surviving entity, unless in any such case (1) the obligations of such Borrower are assumed by another Borrower on terms reasonably acceptable to the Administrative Agent, (2) such event would not result in a Default or an Event of Default, and (3) the portion of the Revolving Facility Credit Exposure of the assuming Borrower does not exceed the portion of the Borrowing Base attributable to the Accounts and Inventory of the assuming Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Covalence Specialty Adhesives 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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(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 an exchange with a fair market value in excess of the greater of (x) $[*] 100,000,000 and (y) [*]1% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] 100,000,000 and (y) [*]1% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] 300,000,000 and [*]5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] 100,000,000 and (y) [*]1% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] 25,000,000 or to other transactions involving assets with a fair market value of not more than the greater of $[*] 300,000,000 and [*]5% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] 125,000,000 million and [*]1% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
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 itit (including by division), or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions, transactions including effected pursuant by allocation of any assets to a Delaware LLC Divisionseries of a limited liability company) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all of any division, unit or any substantial part of the assets business of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary lease, purchase and sale of an asset or other property inventory, in each case, in the ordinary course of business by the Company’s Borrower or Subsidiary’s businessany Subsidiary and sales of accounts receivables pursuant to the terms of a Permitted Credit Support Arrangement, (ii) any the acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is asset in the ordinary course of such Loan Party’s business by the Borrower or any Subsidiary’s business, or (iii) the sale or other Dispositions of Permitted Investments by any Loan Party (x) inventory, goods held for sale or Subsidiaryimmaterial assets, so long as such sale is in each case, in the ordinary course of such business and (y) worn out, obsolete, scrap or surplus assets or assets no longer useful in the conduct of the business of the Loan Party’s Parties and their Subsidiaries or Subsidiary’s otherwise economically impracticable to maintain, or (iv) the sale of Cash Equivalents in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto thereafter no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of (x) any Domestic Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary GuarantorLoan Party or (y) any Foreign Subsidiary into or with any Subsidiary Loan Party in a transaction in which 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 a the Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) in accordance with Section 5.01(a)(ii) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form or dissolution is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions 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 or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan Party in an amount in excess of $10,000,000 shall not be permitted under this clause (c);
(d) any Disposition of Securitization Assets or Permitted Securitization Cash Collateral to a Securitization Subsidiary or any Securitization Provider (solely to the extent subject to a Qualified Securitization Financing) and in the case of the PNC Securitization Financing, solely to the extent such Disposition is prior to the Purchase and Sale Termination Date but giving effect to any extension thereof (as defined in the PNC Purchase and Lease-Back Transactions permitted by Section 6.03Sale Agreement as in effect on the date hereof);
(e) Investments permitted by Section 6.046.04 (other than Section 6.04(v)), Permitted Liens, and dividends, distributions and other payments Liens permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.6.02
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, including effected pursuant to a Delaware LLC Division) all or any part of its substantially all the assets (whether now owned or hereafter acquired), ) of the Borrower or issue, sell, transfer or otherwise dispose of any less than all the Equity Interests of any Subsidiary (if the Company or Fair Market Value of the Equity Interests so disposed of, when combined with all the investments permitted pursuant to 6.04(a)(i)(B) and then outstanding, exceed $10,000,000 at any Subsidiarytime), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson (unless permitted pursuant to Section 6.10, constituting a contribution of assets of such Person to the Borrower or having a Fair Market Value not in excess of $5,000,000), except that this Section shall not prohibit:
(a) (i) any disposal by the Company or Borrower and any Subsidiary of an asset or other property may purchase and sell inventory and capacity energy and ancillary services in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other personmay make investments permitted under Section 6.04 and Restricted Payments permitted under Section 6.06, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (iy) the merger of any Subsidiary (other than may merge or dissolve into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, surviving entity and (iiz) the merger or consolidation of any Subsidiary (other than the Co-Borrower) may merge or dissolve into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or consolidate with any other Subsidiary (provided that if any party to any such transaction is not a Subsidiary GuarantorLoan Party, the surviving entity of such transaction shall be a Loan Party), (iv) the liquidation or dissolution or change in form of entity of connection with any Asset Sale permitted under clause (b) below, any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous Borrower may dissolve, liquidate, consolidate or merge with or into any other Person or permit any other Person to Lendersmerge into or consolidate with it, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) in connection with respect any investment permitted under Section 6.04, any Subsidiary may merge or dissolve into or consolidate with any other Person or permit any other Person to any merge or dissolve into or consolidate with it; provided that the Person surviving such exchange with aggregate gross consideration in excess of the greater of (x) $[*] merger, dissolution or consolidation shall be a Subsidiary Guarantor and (yvi) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04any Immaterial Subsidiary may dissolve, immediately after giving effect theretoliquidate, the Company shall be in Pro Forma Compliancewind up, and (D) the Net Proceeds, if any, thereof are applied in accordance consolidate or merge with Section 2.11(b);or into any other Subsidiary.
(nb) Make any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
Asset Sale (oincluding those otherwise permitted under paragraph (a) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section 6.05 above, ) unless (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition Asset Sale is for fair market valueconsideration at least 75% of which is cash, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition consideration is for at least 75% cash consideration and equal to the Fair Market Value of the assets being sold, transferred, leased or disposed of, (iii) no salethe Fair Market Value of all assets sold, transfer transferred, leased or other disposition disposed of assets shall be permitted by pursuant to this paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iiib) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets exceed in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness 15% of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent value of the cash received) shall be deemed to be cash total net assets of Intermediate Holdings, the Borrower and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of Closing Date and (iv) any Net Cash Proceeds from such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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) Asset Sale shall be deemed to be cashapplied as required by Section 2.13.
Appears in 1 contract
Samples: Credit Agreement (Dynegy Inc.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of assets, or a division of, any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Holdings or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s business by Holdings or any Subsidiary’s business, (iiiv) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is leases and subleases in the ordinary course of such Loan Party’s business by Holdings or Subsidiary’s business, any Subsidiary or (iiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a Domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person Person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Holdings determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Holdings and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases leases, issuances or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases, issuances or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided, further, that the aggregate gross proceeds of any sales, transfers, leases, issuances or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Domestic Subsidiary Loan Party in reliance upon this paragraph (c) (other than any thereof made by a Foreign Subsidiary Loan Party to another Foreign Subsidiary Loan Party) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the Co-Borrower to end of the immediately preceding fiscal year; provided that for any other Subsidiarygiven fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, including without limitationin the event of any such carryover, a Permitted Vessel Transferassets sales in such fiscal year will be deducted first from the carried over amount;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, dividends and distributions and other payments permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases leases, issuances (to the extent of all of the Equity Interests in a Person then owned by Holdings and its Subsidiaries) or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all such sales, transfers, leases, issuances or dispositions made in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that for any given fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, in the event of any such carryover, assets sales in such fiscal year will be deducted first from the carried over amount; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary Loan Party, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary Loan Party, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary; provided, further, that (1) mergers or consolidations in connection with a Permitted Business Acquisition where the acquired Person does not become a Guarantor or the assets acquired are not owned by a Loan Party shall be subject to the limitation set forth in the proviso to Section 6.04(b), and (2) all mergers and consolidations pursuant to this Section 6.05(i) shall be subject to the provisos to Sections 6.04(m) and (o);
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Company or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) sales, leases or other dispositions of inventory of the Company or any Subsidiary Holdings and its Subsidiaries determined by the management of Holdings or the Company to be no longer useful or necessary in the operation of the business of Holdings or any Loan Party or Subsidiaryof the Subsidiaries;
(l) the sale of the performance products business of Nutrinova; provided that the Net Proceeds thereof of such sale are applied in accordance with Section 2.11(b2.11(c);
(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) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater valuethe Designated Asset Sales; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date Net Proceeds of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof sales are applied in accordance with Section 2.11(b2.11(c);; and
(n) any disposition (i) the Fraport Transaction, (ii) the sale-leaseback of any assets owned by any New Vessel Subsidiary facilities acquired or constructed in replacement of any Vessel that is not a Mortgaged Vessel; and
the facilities transferred in connection with the Fraport Transaction and (oiii) disposals the sale of cash raised or borrowed for receivables generated pursuant to the purposes for which such cash was raised or borrowedFraport Transaction. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no action shall be permitted which results in a Change of Control under clause (a) of the definition thereof, (ii) the Company shall at all times own directly (or to the extent all direct and indirect owners of the Equity Interests of CAC (other than the Company) are Domestic Subsidiary Loan Parties, indirectly) 100% of the Equity Interests of CAC, (iii) neither Holdings nor any Subsidiary that owns Equity Interests in any Borrower or in any other Subsidiary that directly owns Equity Interests in any Borrower shall sell, dispose of, xxxxx x Xxxx on or otherwise transfer such Equity Interests in such Borrower or in such Subsidiary, as applicable, (iv) each Foreign Subsidiary that is a Revolving Borrower shall be a Wholly Owned Subsidiary, (v) no sale, transfer transfer, lease, issuance or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, issuances or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) or (to the extent made to Holdings or a Wholly Owned Subsidiary) (j) hereof) unless such disposition is for fair market value, (iivi) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d) or (d(l) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iiivii) no sale, transfer or other disposition of assets in excess of $10.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiivi) and (vii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Celanese CORP)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into into, or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or in any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, or the sale of receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by the Company Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary or, with respect to operating leases, otherwise for fair market value on market terms (as determined in good faith by the Borrower), (iii) the sale of an asset surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Borrower or any substantial part Subsidiary or (iv) the sale or disposition of the assets or other property of any other person, so long as such acquisition is Permitted Investments in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger merger, consolidation or amalgamation of any Subsidiary (other than into or with the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger merger, consolidation or consolidation amalgamation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger merger, consolidation or consolidation amalgamation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower or the Subsidiaries and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition may merge, consolidate or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder amalgamate into or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or Loan Party in reliance on this paragraph (c) shall not in the Co-Borrower to aggregate exceed, in any other Subsidiaryfiscal year of the Borrower, including without limitation, a Permitted Vessel Transfer$5.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments Restricted Payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases leases, licenses 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))6.05; provided, that (i) no Event of Default exists or would result therefrom, (ii) the Net Proceeds thereof are applied in accordance with Section 2.11(b);, (iii) such sale, transfer or other disposition of assets shall be for fair market value (as determined in good faith by the Borrower), or if not for fair market value, the shortfall is permitted as an Investment under Section 6.04, (iv) with respect to any such sale, transfer or other disposition of assets in excess of $10.0 million, the Borrower shall be in Pro Forma Compliance immediately after giving effect thereto and (v) no such sale, transfer or other disposition of assets in excess of $5.0 million shall be permitted unless such disposition is for at least 75% cash consideration; provided, that for purposes of this subclause (g)(v), each of the following shall be deemed to be cash: (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 or are otherwise cancelled in connection with such transaction, (B) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary 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), (C) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this subclause (g)(v)(C) that is at that time outstanding, not to exceed $25.0 million (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (D) with respect to any lease of assets by the Borrower or a Subsidiary that constitutes a disposition, receipt of lease payments over time on market terms (as determined in good faith by the Borrower) where the payment consideration is at least 75% cash consideration.
(h) Permitted Business Acquisitions (including any merger merger, consolidation or consolidation amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger merger, consolidation or consolidation amalgamation involving a the Borrower, such the Borrower is the surviving corporation;
(i) leases, charters or licenses (on a non-exclusive basis with respect to intellectual property)licenses, 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 or sales, licenses, sublicenses or other dispositions or abandonment of intellectual property of the Company Borrower or any Subsidiary of its Subsidiaries determined by the management of the Company Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reserved]the Option Parcel Transactions and dispositions necessary or advisable to facilitate the Option Parcel Transactions;
(m) any exchange of assets for services and/or other assets used or useful in a Similar Business that are of comparable or greater valuevalue (other than any such exchanges by the Borrower or Subsidiary with a Person that is an Affiliate of the Borrower or Subsidiary); provided provided, that (i) at least [*]90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, and (ii) in the event of an exchange a swap with a fair market value (as determined in good faith by the Borrower) in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0425.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of the CompanyBorrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% 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, therefrom and (CB) with respect to any such exchange with aggregate gross consideration that has a fair market value (as determined in good faith by the Borrower) in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0425.0 million, immediately after giving effect thereto, the Company Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) subject to the last paragraph of this Section 6.05, each of the Borrower and the Subsidiaries may enter into any disposition leases, subleases, easements or licenses with respect to any of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; andits Real Property;
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything any disposition made pursuant to the contrary contained in Section 6.05 above, any Operations Management Agreement;
(p) (i) the lease, sublease or license of any portion of the Casino or any project to persons who, either directly or through Affiliates of such persons, intend to operate or manage nightclubs, bars, restaurants, recreation areas, spas, pools, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within the Casino or such project and (ii) the grant of declarations of covenants, conditions and restrictions and/or easements with respect to common area spaces and similar instruments benefiting such tenants of such leases, subleases and licenses generally and/or entered into connection with the Casino or any project (collectively, the “Venue Easements,” and together with any such leases, subleases or licenses, collectively the “Venue Documents”); provided that (A) no saleEvent of Default shall exist and be continuing at the time any such Venue Document is entered into or would occur as a result of entering into such Venue Document, transfer (B) the Loan Parties shall be required to maintain control (which may be through required contractual standards) over the primary aesthetics and standards of service and quality of the business being operated or conducted in connection with any such leased, subleased or licensed space and (C) no Venue Document or operations conducted pursuant thereto would reasonably be expected to materially interfere with, or materially impair or detract from, the operations of the Borrower and the Subsidiaries; provided further that upon request by the Borrower, the Collateral Agent on behalf of the Secured Parties shall provide the tenant, subtenant or licensee under any Venue Document with a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit K or in such other form as is reasonably satisfactory to the Collateral Agent and the applicable Loan Party;
(q) the dedication of space or other dispositions of property in connection with and in furtherance of constructing structures or improvements reasonably related to the development, construction and operation of the Casino or any project; provided that in each case such dedication or other dispositions are in furtherance of, and do not materially impair or interfere with the operations of the Borrower and the Subsidiaries;
(r) dedications of, or the granting of easements, rights of way, rights of access and/or similar rights, to any Governmental Authority, utility providers, cable or other communication providers and/or other parties providing services or benefits to the Casino, any project, any Real Property held by the Loan Parties or the public at large that would not reasonably be expected to interfere in any material respect with the operations of the Borrower and the Subsidiaries; provided that upon request by the Borrower, the Administrative Agent shall direct the Collateral Agent on behalf of the Secured Parties to subordinate its Mortgage on such Real Property to such easement, right of way, right of access or similar agreement in such form as is reasonably satisfactory to the Administrative Agent and the applicable Loan Party;
(s) any disposition of assets shall be permitted by this Section 6.05 Equity Interests in a Subsidiary pursuant to an agreement or other obligation with or to a person (other than salesthe Borrower and the Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), transfers, leases made as part of such acquisition and in each case comprising all or other a portion of the consideration in respect of such sale or acquisition;
(t) dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall do not apply to any individual transaction or series of related transactions involving assets constitute Collateral with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (cBorrower) that is at that time outstanding, of not to exceed more than the greater of $[*] 5.0 million and [*]% 0.085 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(u) dispositions of Consolidated Total Assets as non-core assets acquired in connection with a Permitted Business Acquisition or other Permitted Investment;
(v) other dispositions of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (assets with the a fair market value (as determined in good faith by the Borrower) of each item not more than $5.0 million;
(w) the WSED Acquisition (including any merger, consolidation or amalgamation in order to effect the WSED Acquisition); provided, that following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving entity; and
(x) dispositions set forth on Schedule 6.05. Notwithstanding the foregoing provisions of Designated Non-Cash Consideration being measured this Section 6.05, subsection (n) above shall be subject to the additional provisos that: (a) no Event of Default shall exist and be continuing at the time received such transaction, lease, sublease, easement or license is entered into, (b) such transaction, lease, sublease, easement or license would not reasonably be expected to materially interfere with, or materially impair or detract from, the operation of the Casino, and without giving effect (c) no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to subsequent changes any lessee or any party financing any lessee; provided that, upon request by the Borrower, the Administrative Agent shall direct the Collateral Agent on behalf of the Secured Parties to provide the tenant under any such lease or sublease with a subordination, non-disturbance and attornment agreement in value) such form as is reasonably satisfactory to the Administrative Agent (it being understood and agreed that no such agreement shall be deemed required to be cashprovided unless (A) no Event of Default shall exist and be continuing at such time or would occur as a result thereof and (B) no Material Adverse Effect would result therefrom). To the extent any Collateral is sold or disposed of in a transaction expressly permitted by this Section 6.05 to any person other than the Borrower or any Subsidiary Loan Party, such Collateral shall be sold or disposed of free and clear of the Liens created by the Loan Documents (provided that, for the avoidance of doubt, with respect to any disposal consisting of an operating lease or license, the underlying property retained by the Borrower or such Subsidiary Loan Party will not be so released), and the Administrative Agent shall take, and is hereby 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. 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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired, including, without limitation, customer contracts), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the lease, purchase or sale of inventory or excess transponder capacity in the ordinary course of business by the Company Borrower or any Subsidiary Subsidiary; provided that the proceeds of an any such sale of excess transponder capacity shall be included as revenue in the consolidated statement of operations of the Borrower or such 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 Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) if the Company Borrower determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor Loan Party shall be made in compliance with Section 6.07; provided, further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance upon this paragraph (c) and the Co-Borrower to aggregate gross proceeds of any other Subsidiaryor all assets sold, including without limitationtransferred or leased in reliance upon paragraph (k) below shall not exceed, a Permitted Vessel Transferin any fiscal year of the Borrower, $75.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments Dividends permitted by Section 6.06;
(f) any sale or other absolute transfer of accounts receivable and related assets of the type specified in the definition of “Receivables Financing” (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Financing;
(g) any Event of Loss;
(h) any disposition of assets pursuant to the Equipment Financing Agreements;
(i) any swap (i) of owned or leased satellite transponder capacity for other satellite transponder capacity of comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in good faith by senior management or the Board of Directors or managing member of the Borrower, which in the event of a swap with a Fair Market Value in excess of (x) $10.0 million shall be evidenced by a certificate from a Financial Officer of the Borrower and (y) $25.0 million shall be set forth in a resolution approved in good faith by at least a majority of the Board of Directors or managing member of the Borrower or (ii) of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of the Borrower and its Subsidiaries as a whole, as determined in good faith by senior management or the Board of Directors or managing member of the Borrower, which in the event of a swap with a Fair Market Value in excess of (x) $10.0 million shall be evidenced by a certificate from a Financial Officer of the Borrower and (y) $25.0 million shall be set forth in a resolution approved in good faith by at least a majority of the Board of Directors or managing member of the Borrower;
(j) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gk) sales, transfers, leases or other dispositions of assets (including any such transfer of excess transponder capacity not permitted under paragraph (a) above) not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (k) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c)); providedany fiscal year of the Borrower, $75.0 million provided further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(hl) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a the Borrower, such 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;
(im) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Borrower or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jn) sales, leases or other dispositions of inventory of the Company or any Subsidiary Borrower and its Subsidiaries determined by the management of the Company Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any Loan Party or Subsidiary; of the Subsidiaries provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);; and
(ko) 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) [reserved];
(m) any exchange sales of assets for services and/or other assets of comparable or greater value; described on Schedule 6.05, provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, Proceeds thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof) unless such disposition is for fair market valueFair Market Value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d) or (d(n) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g(k) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions for purposes of clause clauses (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the CompanyBorrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Hughes Communications, Inc.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary or preferred equity interests of the Company (except to the extent that no cash interest or any Subsidiaryother cash payments are required in respect thereof), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, supplies, services, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company or any Subsidiary Subsidiary, (ii) the sale of an any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) (A) the merger or consolidation of any Subsidiary into the Company in a transaction in which the Company is the surviving corporation or (other than B) the Co-Borrower) merger or consolidation of any Subsidiary that is not a Loan Party into a the Foreign Borrower in a transaction in which such the Foreign Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Domestic Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Domestic Loan Party and, in the case of each of clauses (ii)(A) and (ii), no person Person other than a Borrower the Company or a Subsidiary Guarantor Domestic Loan Party receives any consideration or in the case of clause (i)(B), no Person other than the Foreign Borrower receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (other than the Borrowers) or change in form of entity of the Company or any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Domestic Loan Party to a Subsidiary Guarantor that is not a Domestic Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of the Co-Borrower to any other SubsidiaryCompany, including without limitation, a Permitted Vessel TransferU.S.$50.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments repurchases of Equity Interests permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including non-cash proceeds) of any or required all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of the Company, U.S.$50.0 million; provided, provided further that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any purchase, lease, or other acquisition of assets, or any merger or consolidation consolidation, in order to effect each case in connection with a Permitted Business AcquisitionAcquisition permitted under Section 6.04(j); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporationcorporation and (ii) involving any Domestic Loan Party other than the Company, the surviving or resulting entity shall be a Domestic Loan Party that is a Wholly Owned Subsidiary;
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Company or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) abandonment, cancellation or disposition of any intellectual property of the Borrowers in the ordinary course of business;
(l) the sale of the land owned by a Domestic Loan Party in Plaistow, New Hampshire and the sale of the facility owned by a Domestic Loan Party in Denver, Colorado;
(m) sales, leases or other dispositions of inventory of the Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiaryof the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b2.11(c);
(n) any disposition factoring of any assets owned receivables held by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vesselthe Company and its Subsidiaries as permitted under Section 6.01(t); and
(o) disposals of cash raised or borrowed for asset sales, mergers, consolidations and acquisitions made in connection with the purposes for which such cash was raised or borrowedPermitted Foreign Restructuring. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) or (o) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d), (f) or (d(k) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets in excess of U.S.$10.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiii) and (ii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of assets, or a division of, any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Holdings or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s business by Holdings or any Subsidiary’s business, (iiiv) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is leases and subleases in the ordinary course of such Loan Party’s business by Holdings or Subsidiary’s business, any Subsidiary or (iiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a Domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person Person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Holdings determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Holdings and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation merger or consolidation of any Subsidiary that is a Delaware Divided Celanese Holdings, LLC with and into Crystal Holdings 3 LLC (“Crystal 3”), its direct parent, and the immediate subsequent merger of Crystal 3, as surviving entity of such merger, with and into the Company, as described in the Amendment Agreement; provided that, for the avoidance of doubt, there shall be no release of the Guarantee of Celanese Holdings, LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries Holdings shall have complied with executed the requirements of Section 5.10Supplement to the Guarantee and Collateral Agreement as set forth in the Amendment Agreement;
(c) sales, transfers, leases leases, issuances or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases, issuances or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided, further, that the aggregate gross proceeds of any non-cash consideration from any such sales, transfers, leases, issuances or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Domestic Subsidiary Loan Party in reliance upon this paragraph (c) (other than any thereof made by a Foreign Subsidiary Loan Party to another Foreign Subsidiary Loan Party) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the Co-Borrower to end of the immediately preceding fiscal year; provided that for any given fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, in the event of any such carryover, assets sales in such fiscal year will be deducted first from the carried over amount;, if constituting an Investment, shall be made in compliance with Section 6.04 hereof (other Subsidiary, including without limitation, a Permitted Vessel Transfer;than Section 6.04(f)).
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.046.04 (including, Permitted Liensfor the avoidance of doubt, any transfers among Subsidiaries permitted pursuant to paragraphs (u), (v) and dividends(w) of Section 6.04 whether or not meeting the definition of “Investment”), Liens permitted by Section 6.02 and dividends and distributions and other payments permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases leases, issuances (to the extent of all of the Equity Interests in a Person then owned by Holdings and its Subsidiaries) or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all such sales, transfers, leases, issuances or dispositions made in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that for any given fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, in the event of any such carryover, assets sales in such fiscal year will be deducted first from the carried over amount; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary Loan Party, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary Loan Party, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary; provided, further, that (1) mergers or consolidations in connection with a Permitted Business Acquisition where the acquired Person does not become a Guarantor or the assets acquired are not owned by a Loan Party shall be subject to the limitation set forth in the proviso to Section 6.04(b), and (2) all mergers and consolidations pursuant to this Section 6.05(i) shall be subject to the provisosproviso to SectionsSection 6.04(m) and (o);
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Company or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) sales, leases or other dispositions of inventory of the Company or any Subsidiary Holdings and its Subsidiaries determined by the management of Holdings or the Company to be no longer useful or necessary in the operation of the business of Holdings or any Loan Party or Subsidiaryof the Subsidiaries;
(l) the sale of the performance products business of Nutrinova; provided that the Net Proceeds thereof of such sale are applied in accordance with Section 2.11(b2.11(c);
(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) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater valuethe Designated Asset Sales; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date Net Proceeds of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof sales are applied in accordance with Section 2.11(b2.11(c);; and
(n) any disposition (i) the Fraport Transaction, (ii) the sale-leaseback of any assets owned by any New Vessel Subsidiary facilities acquired or constructed in replacement of any Vessel that is not a Mortgaged Vessel; and
the facilities transferred in connection with the Fraport Transaction and (oiii) disposals the sale of cash raised or borrowed for receivables generated pursuant to the purposes for which such cash was raised or borrowedFraport Transaction. Notwithstanding anything to the contrary contained in Section this Section 6.05 above, (i) no action shall be permitted which results in a Change of Control under clause (a) of the definition thereof, (ii) the Company shall at all times own directly (or to the extent all direct and indirect owners of the Equity Interests of CALLC (other than the Company) are Domestic Subsidiary Loan Parties, indirectly) 100% of the Equity Interests of CALLC, (iii) neither Holdings nor any Subsidiary that owns Equity Interests in any Borrower or in any other Subsidiary that directly owns Equity Interests in any Borrower shall sell, dispose of, xxxxx x Xxxx on or otherwise transfer such Equity Interests in such Borrower or in such Subsidiary, as applicable, (iv) each Foreign Subsidiary that is a Revolving Borrower shall be a Wholly Owned Subsidiary, (v) no sale, transfer transfer, lease, issuance or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, issuances or other dispositions to Loan Parties pursuant to paragraph (c(c) hereofhereofof this Section 6.05 and purchases, sales or transfers pursuant to paragraph (f) of this Section 6.05 or (to the extent made to Holdings or a Wholly Owned Subsidiary) (j) hereofof this Section 6.05) unless such disposition is for fair market valuevalue (provided that, for the avoidance of doubt, transfers referred to in paragraphs (u), (iiv) and (w) of Section 6.04 that are permitted by paragraph (e) of this Section 6.05 need only meet such fair market value requirement when taken as a whole, disregarding intermediate steps, in the case of transfers occurring in multiple steps), (vi) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d) or (d(l) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iiivii) no sale, transfer or other disposition of assets in excess of $10.012.5 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiivi) and (vii), (a) the amount of (x) any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (cy) any Designated Non-Cash Consideration received by the Company or in respect of any of its Subsidiaries such disposition having an aggregate fair market value (as determined in good faith by the Company)value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (cy) that is at that time outstanding, not to exceed the greater in excess of $[*] million and [*]2.0% of Consolidated Total Assets of Holdings as of the end last day of the then most recently ended fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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) are available, shall be deemed to be cash.
Appears in 1 contract
Samples: Credit Agreement (Celanese 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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company 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 that this Section shall not prohibit:: NYDOCS01/1270096.12 Xxxxx – A&R Revolving Credit Agreement
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company or any Subsidiary and the 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 lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) ; if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower Company in a transaction in which such Borrower the Company is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Company or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrowerthe Company) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) ; sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
Loan Party in reliance on this paragraph (dc) shall be made in compliance with Section 6.07 and shall be included in Section 6.05(g); Sale and Lease-Back Transactions permitted by Section 6.03;
(e) ; Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments Dividends permitted by Section 6.06;
(f) 6.06 and capital expenditures; the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) ; sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that (i) the Net Proceeds thereof are applied aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in accordance with reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Company, 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 2.11(b);
5.04, (hii) no Default or Event of Default exists or would result therefrom; (iii) immediately after giving effect thereto, the Revolving Facility Credit Exposure shall not exceed the Borrowing Base calculated on a Pro Forma Basis after giving effect to such sale, transfer, lease or other disposition, and (iv) immediately after giving effect to any such sale, lease, transfer, lease or other disposition of Accounts or inventory not undertaken in the ordinary course of business, the Revolving Facility Credit Exposure shall not exceed the Borrowing Base; NYDOCS01/1270096.12 Xxxxx – A&R Revolving Credit Agreement Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation (i) involving a Borrowerthe Company, such Borrower the Company is the surviving corporation;
, (iii) 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; leases, charters or 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 Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiaryof the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
; the purchase and sale or other transfer (lincluding by capital contribution) [reserved];
(m) of Receivables Assets pursuant to Permitted Receivables Financings; provided, that, after giving effect to each such purchase and sale or other transfer, the Borrower shall be in compliance with Section 2.11(b); any exchange of assets for services and/or other assets of comparable or greater value; provided 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 an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0420.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of Holdings or the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, 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, therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect theretoto such exchange, the Company Revolving Facility Credit Exposure shall not exceed the Borrowing Base calculated on a Pro Forma Basis after giving effect to such exchange; the sale of assets described on Schedule 6.05; the sale of assets as part of the Specified Asset Sale; and NYDOCS01/1270096.12 Xxxxx – A&R Revolving Credit Agreement the purchase and sale or other transfer of Receivables Assets in connection with a Permitted Supplier Finance Facility; provided, that, after giving effect to each such purchase and sale or other transfer, the Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance compliance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c(c) hereofof this Section 6.05) unless such disposition is for fair market value, value and (ii) no sale, transfer or other disposition of assets in excess of $15 million shall be permitted by paragraph (a) or (d(g) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iiiii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the Company’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company (other than liabilities that is are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cashassets, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary of the Company from the such transferee that are converted by the Company or such Subsidiary of the Company into cash within 180 days after of the receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)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 $[*] million and [*]3.0% of Consolidated Total Assets as and $100 million at the time of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 Company 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 Company in order to evidence the foregoing. Anything contained herein to the contrary notwithstanding, (A) neither the Company nor any other Loan Party shall sell or otherwise dispose of any Inventory or Accounts (other than sales of Inventory in the ordinary course of business and sales of Accounts for collection) if, as a result of such sale or other disposition, the Revolving Facility Credit Exposure would exceed the Borrowing Base, in each case determined as of the time of such sale or other disposition, and (B) none of the capital stock of any Borrower shall be sold or transferred, nor shall any Borrower enter into any merger or similar transaction in which such Borrower is not the surviving entity, unless in any such case (1) the obligations of such Borrower are assumed by another Borrower on terms reasonably acceptable to the Administrative Agent, (2) such event would not result in a Default or an Event of Default, and (3) the portion of the Revolving Facility Credit Exposure of the assuming Borrower does not exceed the portion of the Borrowing Base attributable to the Accounts and Inventory of the assuming Borrower.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company Borrowers or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company any Loan Party or any Subsidiary of an asset or other property not constituting Specified Collateral, so long as such disposal is in the ordinary course of the Companysuch Loan Party’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromtherefrom and CCH shall have provided prior written notice thereof to the Administrative Agent, (i) the merger of any Subsidiary (other than the Co-a Subsidiary Borrower) into a Borrower CCH in a transaction in which such Borrower CCH is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-a Subsidiary Borrower) into or with any other Subsidiary Guarantor in a transaction in which the surviving or resulting entity is (other than a Subsidiary GuarantorBorrower), and, in the case of each of clauses (i) and (ii), no person other than a Borrower CCH or a Subsidiary Guarantor (other than a Subsidiary Borrower) receives any consideration, (iii) the merger of CCH or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that Borrower), so long as, if applicable, CCH is the survivor, and such transaction does not a Subsidiary Guarantorimpair the Liens on the Collateral granted for the benefit of the Secured Parties, (iv) in addition to the transactions expressly permitted in paragraphs (j), (k) and (l) of this Section 6.05, the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Subsidiary Borrower) if the Company determines Borrowers determine in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrowers and is will not impair the ability of any Loan Party to perform its obligations under the Loan Documents or any Liens on Collateral granted for the benefit of the Secured Parties, or otherwise be materially disadvantageous to Lenders, the Agents and the Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-a Subsidiary Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be Subsidiary (other than a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10Borrower);
(c) sales, transfers, leases or other dispositions to any Loan Party (other than Radisson France) or by any Subsidiary that is not (other than a Subsidiary Guarantor or the Co-Borrower Borrower) to any other SubsidiarySubsidiary (other than Radisson France); provided that, including without limitationin the case of any transfer or other disposition effected pursuant to a Mortgaged Vessel Operations Agreement, each counterparty thereto (other than the Subsidiary Borrower that is the record owner of the related Mortgaged Vessel) has executed and delivered a Permitted Mortgaged Vessel TransferOperations Subordination Agreement;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments dividends permitted by Section 6.066.06 and any permitted Capital Expenditure that is a purchase or a lease;
(fe) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gf) sales, transfers, leases 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 the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 not constituting Collateral in the ordinary course of business;
(jg) sales, leases or other dispositions of inventory of the Company any Loan Party or any Subsidiary determined by the management of the Company CCH to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.10(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(mh) 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.045,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company CCH with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0420,000,000, such exchange shall have been approved by at least a majority of the board of directors of the CompanyCCH; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (mh) shall not exceed, in any fiscal year of the CompanyCCH, the greater of $[*] 30,000,000 and [*]5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410,000,000, immediately after giving effect thereto, the Company Borrowers shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b2.10(b);
(ni) any disposition of any assets owned by any New Vessel Subsidiary or of Subsidiary; provided that the proceeds from such disposition shall be applied to repay any New Vessel that is not a Mortgaged Vessel; andFinancing secured by such assets;
(oj) Radisson France may be converted from its existing form as a société en nom collectif (SNC) (a partnership with unlimited liability) to a société par actions simplifiée (SAS) (a limited liability company);
(k) the liquidation, dissolution or other transaction in which any of the following entities ceases to exist: (i) Interim LLC, (ii) Vlasov Leisure Limited, (iii) Xxxx Bay Shipping Company Limited, (iv) Finship Italy S.R.L. (and any modification thereto not adverse to the Lenders) or (v) following the completion of the Mariner Transactions, Radisson France;
(l) the Mariner Transactions;
(m) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed; and
(n) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; provided, that (i) the aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (n) shall not exceed, in any fiscal year of CCH, $3,000,000, (ii) no Default or Event of Default exists or would result therefrom, (iii) immediately after giving effect thereto, CCH shall be in Pro Forma Compliance, (iv) this paragraph shall not be available in the case of the sale, transfer, lease or other disposition of a Mortgaged Vessel, and (v) the Net Proceeds thereof are applied in accordance with Section 2.10(b). Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets any Specified Collateral shall be permitted by this Section Section 6.05, (ii) no sale, transfer or other disposition of any other asset shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereofof this Section 6.05) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration value and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g(a) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Mariner, LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, 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, including effected pursuant to a Delaware LLC Division) all or any part of its substantially all the assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests ) of the Company or any SubsidiaryU.S. 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 this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary may (other than x) merge into the Co-Borrower) into a U.S. Borrower in a transaction in which such the U.S. Borrower is the survivorsurviving corporation, (y) liquidate or dissolve into the U.S. Borrower or (z) dispose of all or substantially all its assets to the U.S. Borrower, in each case, so long as no person other than the U.S. Borrower or a wholly owned Subsidiary of any Borrower receives any consideration, (ii) the merger or consolidation of any Subsidiary may (other than the Co-Borrowerx) merge into or consolidate with any other Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary, (y) liquidate or dissolve into any other Subsidiary Guarantor, andor (z) dispose of all or substantially all of its assets to any other Subsidiary, in the case of each of clauses (i) and (ii)case, so long as no person other than a the U.S. Borrower or a wholly owned Subsidiary Guarantor receives any considerationconsideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of, or transferee in, such transaction shall be a Loan Party), (iii) the merger any Immaterial Subsidiary may be liquidated or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantordissolved, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if U.S. Borrower and the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Subsidiaries may make Permitted Acquisitions and is not materially disadvantageous to Lenders, (v) Holdings, the U.S. Borrower and the Subsidiaries may consummate the Merger.
(b) Holdings and the Borrowers will not, nor will they cause or permit any disposition to effect of the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) Subsidiaries to, engage in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Asset Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;except:
(i) leases(A) any such Asset Sale the consideration for which is at least 80% cash, charters or licenses (on a non-exclusive basis with respect B) such consideration is at least equal to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory fair market value of the Company assets being sold, transferred, leased or any Subsidiary determined by the management disposed of, and (C) except for sales of the Company to be no longer useful Equity Interests of Savills plc, the fair market value of all assets sold, transferred, leased or necessary in the operation disposed of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that this clause (i) at least [*]shall not exceed in any fiscal year 5% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the preceding fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vesselyear; and
(oii) disposals sales by the U.S. Borrower or the Subsidiaries of cash raised brokerage offices, or borrowed for transfers of the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section 6.05 aboveassets of brokerage offices and related assets, (ix) no sale, transfer to joint ventures in the ordinary course of business or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties y) pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 cashAffected Contract.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of Holdings, the Company Borrower or any Subsidiaryother 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 that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Holdings or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) business by any Loan Party or Subsidiary of all Holdings or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party (subject to clause (i) above) and, in the case of each of clauses (i) and (ii)) above, no person other than a the Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (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 or change in form of entity of Holdings or any Subsidiary (other than a Borrower) if Subsidiary, provided that, in the Company determines in good faith that case of any such liquidation, dissolution or change in form is in of entity, Holdings shall given 30 days prior written notice to the best interests of Administrative Agent and the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests Collateral Agent of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10change;
(c) sales, transfers, leases or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided, further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of Holdings, 5.0% of Consolidated Total Assets as of the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transferend of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments Dividends permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or required all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (h) and in reliance upon the second proviso to be included paragraph (c) above shall not exceed, in this clause (g) pursuant to Section 6.05(c))any fiscal year of Holdings, 7.50% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a the Borrower, such the Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a domestic Loan Party that is a Wholly Owned Subsidiary of Holdings and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary of Holdings;
(ij) leases, charters [intentionally omitted];
(k) licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Borrower or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jl) sales, leases or other dispositions of inventory of the Company or any Subsidiary Holdings and its Subsidiaries determined by the management of Holdings or the Company Borrower to be no longer useful or necessary in the operation of the business of Holdings or any Loan Party or Subsidiaryof the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b2.11(c);
(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) [reserved];; and
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered transactions pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowedPermitted Gas Properties Transactions. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower free and clear of any Liens other than Liens created by the Security Documents, (ii) [intentionally omitted], (iii) [intentionally omitted], (iv) [intentionally omitted], (v) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) hereof) unless such disposition is for fair market value, (iivi) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d) or (d(l) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iiivii) no sale, transfer or other disposition of assets in excess of $10.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiiv) and (vi), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s Holdings’ or such Subsidiary’s most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company 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 that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Borrower or any Subsidiary Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of an 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 Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger merger, consolidation or amalgamation of any Subsidiary into (other than or with) the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger merger, consolidation or amalgamation or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition may merge, consolidate or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge amalgamate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of their Subsidiaries its subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor Loan Party in reliance on this paragraph (c) shall be made in compliance with Section 6.07, and shall not in the aggregate exceed, in any fiscal year of the Borrower, 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such sale, transfer, lease or the Co-Borrower other disposition for which financial statements have been delivered pursuant to any other Subsidiary, including without limitation, a Permitted Vessel TransferSection 5.04;
(d) Sale and Lease-Lease Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments dividends permitted by Section 6.066.06 and Capital Expenditures;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases leases, licenses or other dispositions of assets not otherwise permitted by this Section 6.05 6.05; provided that (i) the aggregate gross proceeds (including non-cash proceeds) of any or required to be included all assets sold, transferred, leased, licensed or otherwise disposed of in reliance upon this clause paragraph (g) shall not exceed, in any fiscal year of the Borrower, the greater of (x) $125 million and (y) 8.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 6.05(c)); provided5.04, that (ii) no Default or Event of Default exists or would result therefrom, and (iii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including non-cash proceeds) in excess of $10.0 million, immediately after giving effect thereto, the Net Proceeds thereof are applied Borrower shall be in accordance with Section 2.11(b)Pro Forma Compliance;
(h) Permitted Business Acquisitions (including any merger or consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, provided that following any such merger or consolidation or amalgamation, (i) involving a the Borrower, such the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Wholly-Owned Subsidiary, and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly-Owned Subsidiary;
(i) leases, charters or licenses (on a non-exclusive basis with respect to intellectual property)licenses, 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 Company or any Subsidiary Borrower and the Subsidiaries determined by the management of the Company Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)Subsidiaries;
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to Sale; provided that such Investment constitutes a Permitted Business Acquisition or the first proviso acquisition of paragraph (a) assets useful in the business of the definition of “Net Proceeds”Borrower and the Subsidiaries;
(l) [reserved];the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings); and
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company Borrower with respect to such fair market value value, and (iii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0420.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of Holdings or the CompanyBorrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the CompanyBorrower, the greater of $[*] 125.0 million and [*]8.5% 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 5.045.04(b), (B) no Default or Event of Default exists or would result therefrom, therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, immediately after giving effect thereto, the Company Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a) or (d(d) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration consideration, and (iii) no sale, transfer or other disposition of assets in excess of $10 million shall be permitted by paragraph (g(g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] 10.0 million or to other transactions involving assets with a fair market value of not more than the greater of $[*] 50.0 million and [*]3.5% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Cash Flow Credit Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the CompanyBorrower’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be deemed to be cashcash (other than any such liabilities that are by their terms subordinated in right of payment to the Obligations), (b) any notes or other obligations or other securities or assets received by the Company Borrower or such Subsidiary from the transferee that are converted by the Company Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash ), and (c) any Designated Non-Cash Consideration received by the Company Borrower or any of its the Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)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 $40.0 million at the greater of $[*] million and [*]% of Consolidated Total Assets as time of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 that 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 Loan Party, 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: Credit Agreement (Verso Paper 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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company U.S. Borrower or any SubsidiarySubsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company U.S. Borrower or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all U.S. Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of Holdings with the U.S. Borrower, (ii) [reserved], (iii) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (iiiv) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (iiii) and (iiiv), no person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iiiv) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (ivvi) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company U.S. Borrower determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company U.S. Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan Party shall be made in compliance with Section 6.07;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments investments expressly permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the purchase, sale or other transfer of accounts receivable and related assets pursuant to the Permitted Receivables Financing;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (other than the note evidencing or required any right to be included payment in this clause (g) pursuant to Section 6.05(crespect of the Intermediate Holdings Loan or the Xxxxx Loan)); provided, provided that such sale does not constitute a sale of all or substantially all the Net Proceeds thereof are applied in accordance with Section 2.11(b)assets of Holdings, the U.S. Borrower and the Subsidiaries, taken as a whole;
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation;, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary; and
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on other intellectual property of the U.S. Borrower or 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 property Subsidiary in the ordinary course of business;
. Notwithstanding anything to the contrary contained above, (ji) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, (ii) [reserved], (iii) each Foreign Subsidiary Borrower and Xxxxx shall be a Wholly Owned Subsidiary, (iv) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (v) no sale, transfer or other disposition of inventory assets shall be permitted by paragraphs (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (vi) no sale, transfer or other disposition of assets in excess of $250,000,000 shall be permitted by paragraph (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided, however, that (A) for purposes of clause (vi) of this sentence, the Company assumption by the transferee of liabilities associated with the assets subject to any sale, transfer or other disposition shall not be deemed to be consideration paid in respect of such assets and (B) for purposes of clauses (v) and (vi) of this sentence, any Designated Non-Cash Consideration received by the U.S. Borrower or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business respect of any Loan Party such sale, transfer or Subsidiary; provided that other disposition (valued at the Net Proceeds thereof are time of receipt thereof, and without giving effect to any write-downs or write-offs thereof) having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration previously applied in accordance with Section 2.11(b);
pursuant to this clause (kB) acquisitions and purchases made with less the net cash proceeds of any Asset Sale pursuant subsequent sale of any such Designated Non-Cash Consideration, not to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of exceed the greater of (x) $[*] and (y) [*]2.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 and (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 valuey) $100,000,000, shall be deemed to be cashconstitute “cash consideration” received in respect of such sale, transfer or other disposition.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into into, amalgamate with or consolidate with any other personPerson, or permit any other person Person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or in any SubsidiaryPerson, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or, except as permitted by Section 5.01(a), liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), except that this Section 6.05 shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary sale of an asset or other property Permitted Investments in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than the Co-Borrower) into subject to Section 6.09(c), a Borrower in a transaction in which such Borrower is the survivorPermitted EnLink Consolidation Event, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or Guarantor with any other Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Borrower and any Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as such Borrower is the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;Person; and
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer[***];
(d) Sale (i) Dispositions of assets constituting Investments permitted by Sections 6.04(c), (d), (e), (f), (g), and Lease-Back Transactions (h), (ii) Liens permitted by Section 6.03;
6.02 and (eiii) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(oe) disposals sales, transfers or dispositions of cash raised or borrowed for Equity Interests of the purposes for which such cash was raised or borrowedManager to any Borrower and/or any Subsidiary Guarantor. Notwithstanding anything to the contrary contained in Section Section 6.05 aboveor otherwise in this Agreement, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value[***], (ii) no sale, transfer or other disposition Dispositions of assets Equity Interests of the Manager shall be permitted except as contemplated by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and Section 6.05(e), (iii) no saleLoan Party shall permit the Manager to merge into, transfer amalgamate with or consolidate with any other disposition Person, or permit any other Person to merge into, amalgamate with or consolidate with the Manager, where the Manager is not the surviving Person, unless substantially concurrently with the consummation of assets such transaction, the Equity Interests of such surviving Person constitute Pledged Collateral and (iv) nothing herein shall be permitted by paragraph (grestrict the ability of any Borrower and any Subsidiary Guarantors (A) to issue Equity Interests if such Subsidiary Guarantor, such Borrower or its Parent, as applicable, is in compliance with any applicable requirements of this Section 6.05 unless such disposition is the Collateral Agreement relating to the pledge of Pledged Collateral or (B) merge with a wholly-owned subsidiary or reincorporate in another jurisdiction for at least 75% cash considerationpurposes of moving its state of formation; provided that in no event shall any Loan Party be incorporated or organized under the provisions laws of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to jurisdiction other transactions involving assets with a fair market value of not more than the greater United States of $[*] and [*]% America, any State thereof or the District of Consolidated Total Assets in the aggregate for all such transactions during the term of this AgreementColumbia; provided, further, that for purposes of clause (iii), (a) such Borrower shall be the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or surviving Person in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or merger involving such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 cashBorrower.
Appears in 1 contract
Samples: Credit Agreement (Global Infrastructure Investors III, LLC)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary or preferred equity interests of the Company (except to the extent that no cash interest or any Subsidiaryother cash payments are required in respect thereof), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, supplies, services, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company or any Subsidiary Subsidiary, (ii) the sale of an any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) (A) the merger or consolidation of any Subsidiary into the Company in a transaction in which the Company is the surviving corporation or (other than B) the Co-Borrower) merger or consolidation of any Subsidiary that is not a Loan Party into a any Foreign Borrower in a transaction in which such Foreign Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Domestic Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Domestic Loan Party and, in the case of each of clauses (ii)(A) and (ii), no person Person other than a Borrower the Company or a Subsidiary Guarantor Domestic Loan Party receives any consideration or, in the case of clause (i)(B), no Person other than the applicable Foreign Borrower receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (other than the Borrowers) or change in form of entity of the Company or any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Domestic Loan Party to a Subsidiary Guarantor that is not a Domestic Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of the Co-Borrower to any other SubsidiaryCompany, including without limitation, a Permitted Vessel TransferU.S.$50.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments repurchases of Equity Interests permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases 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))6.05; provided, provided that the Net Proceeds thereof are applied aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in accordance with Section 2.11(b)reliance upon this paragraph (h) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the Company, U.S.$50.0 million;
(hi) Permitted Business Acquisitions (including any purchase, lease, or other acquisition of assets, or any merger or consolidation consolidation, in order to effect each case in connection with a Permitted Business AcquisitionAcquisition permitted under Section 6.04(j); provided, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporationcorporation and (ii) involving any Domestic Loan Party other than the Company, the surviving or resulting entity shall be a Domestic Loan Party that is a Wholly Owned Subsidiary;
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), property of the Company or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property Subsidiary in the ordinary course of business;
(jk) abandonment, cancellation or disposition of any intellectual property of the Borrowers in the ordinary course of business;
(l) the sale of the land owned by a Domestic Loan Party in Plaistow, New Hampshire and the sale of the facility owned by a Domestic Loan Party in Denver, Colorado;
(m) sales, leases or other dispositions of inventory of the Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)Subsidiaries;
(n) any disposition factoring of any assets owned receivables held by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vesselthe Company and its Subsidiaries as permitted under Section 6.01(t); and
(o) disposals of cash raised or borrowed for asset sales, mergers, consolidations and acquisitions made in connection with the purposes for which such cash was raised or borrowedPermitted Foreign Restructuring. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) or (o) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a(a), (d), (f) or (d(k) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets in excess of U.S.$10.0 million shall be permitted by paragraph (g(h) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause clauses (iiii) and (ii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary or preferred equity interests of the Company (except to the extent that no cash interest or any Subsidiaryother cash payments are required in respect thereof), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory, supplies, services, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company or any Subsidiary Subsidiary, (ii) the sale of an any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) (A) the merger or consolidation of any Subsidiary into the Company in a transaction in which the Company is the surviving corporation or (other than B) the Co-Borrower) merger or consolidation of any Subsidiary that is not a Loan Party into a any Foreign Borrower in a transaction in which such Foreign Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Domestic Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Domestic Loan Party and, in the case of each of clauses (ii)(A) and (ii), no person Person other than a Borrower the Company or a Subsidiary Guarantor Domestic Loan Party receives any consideration or, in the case of clause (i)(B), no Person other than the applicable Foreign Borrower receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (other than the Borrowers) or change in form of entity of the Company or any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Domestic Loan Party to a Subsidiary Guarantor that is not a Domestic Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of the Co-Borrower to any other SubsidiaryCompany, including without limitation, a Permitted Vessel TransferU.S.$50.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments repurchases of Equity Interests permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] securities and (y) [*]% of Consolidated Total Assets as of during the end of the fiscal quarter six-month period immediately prior to the scheduled maturity date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto2018 Senior Subordinated Notes, the Company shall will not permit Liquidity to be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the principal amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that 2018 Senior Subordinated Notes as is not a Loan Party (as shown on the Company’s or then outstanding at such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 cashtime.
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, liquidate, wind up or selldissolve itself (or suffer any liquidation or dissolution), transferor change its jurisdiction of organization to a jurisdiction outside of the United States, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all any property of the Loan Parties or any part of its assets (whether now owned or hereafter acquired)their Subsidiaries, or issue, sell, transfer issue or otherwise dispose Dispose of any Equity Interests Capital Stock of the Company or any SubsidiaryBorrower, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets or stock of any other personPerson or any division, except that this Section shall not prohibitunit or business of any Person, except:
(a) mergers into or consolidations or amalgamations of (i) any disposal by Person (other than the Company Borrower) into or any Subsidiary of an asset or other property with PCG in a transaction in which PCG is the ordinary course of the Company’s or Subsidiary’s businesssurviving entity, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary Person (other than the Co-BorrowerPCG) into a or with the Borrower in a transaction in which such the Borrower is the survivorsurviving entity, (iiiii) the merger or consolidation of any Subsidiary Person (other than PCG or the Co-Borrower) into or with any Subsidiary Guarantor (other than the Borrower) in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, (and, in the case of each of clauses (iif any party to such merger, consolidation or amalgamation is a Loan Party, is a Loan Party) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any Person (other person than PCG or the Borrower) in order a transaction permitted under clauses (b) through (s) below in which, after giving effect to effect an Investment permitted pursuant to Section 6.04 so long as such transaction, the continuing or surviving person shall be entity is not a Subsidiary, which shall be ;
(b) Dispositions of assets (i) from any Loan Party to any Loan Party or (2) from any Subsidiary (other than a Loan Party if the merging Subsidiary was a Party) to any Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10or any Subsidiary;
(c) salesDispositions of surplus, transfersobsolete or worn out property, leases or other dispositions to any Loan Party or by any Subsidiary property that is not a Subsidiary Guarantor no longer useful, useable or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables economically viable in the ordinary course conduct of business and not as part of an accounts receivables financing transaction;
(g) salesthe business, transfers, leases 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 the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(d) Dispositions of inventory in the ordinary course of business;
(e) Dispositions of property having a fair market value not to exceed $25,000,000 (or the equivalent in any other currency) in the aggregate during the term of this Agreement;
(f) to the extent that (i) the relevant property is exchanged for, or for credit against the purchase price of, similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
(g) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
(h) the sale or issuance of any Capital Stock of a Subsidiary of the Borrower to a Loan Party;
(i) Dispositions required to comply with any requirement of a Governmental Authority or a Requirement of Law;
(j) sales, leases or other dispositions Dispositions of inventory of cash and/or cash equivalents (including the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary Permitted Cash Equivalents) in the operation ordinary course of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b)business;
(k) acquisitions and purchases made with Dispositions of assets for the proceeds purpose of any Asset Sale pursuant charitable contributions or similar gifts to the first proviso extent such assets are not material to the ability of paragraph (a) of the definition of “Net Proceeds”PCG and its Subsidiaries, taken as a whole, to conduct its business;
(l) [reserved]Dispositions permitted pursuant to Section 7.3;
(m) Dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business, in an aggregate amount not to exceed $100,000,000 in any exchange fiscal year;
(n) Dispositions of power, capacity, heat rate, renewable energy credits, waste by-products, energy, electricity, coal and lignite, oil and other petroleum-based liquids, emissions and other environmental credits, ancillary services, fuel (including all forms of nuclear fuel and natural gas) and other related assets or products of services, including assets related to trading activities or the sale of inventory or contracts related to any of the foregoing, in each case in the ordinary course of business;
(o) Dispositions of mineral rights, other than mineral rights in respect of coal or lignite, in the ordinary course of business;
(p) Dispositions of any real property that (i) is used as buffer land, but no longer serves such purpose, or its use is restricted such that it will continue to be buffer land, or (ii) was acquired in connection with power generation facilities, but has been reasonably determined by the Borrower to no longer be commercially suitable for such purpose, in each case, in the ordinary course of business
(q) Dispositions of assets for services and/or in connection with salvage activities;
(r) Dispositions of any assets from a Loan Party to a Subsidiary (other assets than a Loan Party) as a substantially concurrent interim Disposition in connection with a Disposition otherwise permitted pursuant to this Section 7.5;
(s) any other Disposition of comparable any property by a Loan Party or greater valueany of its Subsidiaries; provided that (i) the consideration for such Disposition shall be at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior equal to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (with the fair market value of each item of Designated Non-Cash Consideration being measured such property at the time received of such Disposition and without giving effect to subsequent changes in value(ii) at least 75% of such consideration shall be deemed to be cashin cash and/or cash equivalents; and
(t) capital expenditures in the ordinary course of business.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (PACIFIC GAS & ELECTRIC Co)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge into The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, merge into, amalgamate with or consolidate with any other person, or permit any other person to merge into into, amalgamate with or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of related transactions, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose Dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part substantially all of the assets of any other person or division or line of business of a person, except that this Section 5.19 shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger merger, amalgamation or consolidation of any Subsidiary (other than of the Co-Borrower) Borrower with or into a the Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger merger, amalgamation or consolidation of any Subsidiary of the Borrower with or into any Loan Party (other than the Co-Borrower) into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Domestic Subsidiary Guarantor, and is or becomes a Loan Party and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a Subsidiary Guarantor another Loan Party receives any consideration, (iii) the merger merger, amalgamation or consolidation of any Subsidiary of the Borrower (other than the Co-Borrowera Loan Party) that is not a Subsidiary Guarantor with or into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if (other than a Borrowerx) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, (y) no Loan Party is liquidated or dissolved into a Subsidiary that is not a Loan Party and (z) no Domestic Subsidiary is liquidated or dissolved into a Foreign Subsidiary, (v) any disposition to effect Subsidiary of the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition Borrower may merge, amalgamate or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 5.16 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Domestic Subsidiary and a Loan Party if the merging merging, amalgamating or consolidating Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the any applicable requirements of Section 5.107.09, (vi) any Subsidiary may merge, amalgamate or consolidate with any other person in order to effect a Disposition otherwise permitted pursuant to this Section 5.19, or (vii) any Permitted Acquisition and any purchase, lease or other acquisition (in one transaction or a series of related transactions) of all or substantially all of the assets of any other person or division or line of business of a person which, if structured as a merger or purchase of Equity Interests, would constitute a Permitted Acquisition;
(b) a Disposition of assets to the Borrower or any Subsidiary of the Borrower (other than a Receivables Entity and other than Loan SPV); provided that any Disposition by a Loan Party to a Subsidiary that is not a Loan Party in reliance on this clause (b) shall be for cash and for Fair Market Value;
(c) sales, transfers, leases an issuance of Equity Interests by a Subsidiary of the Borrower to the Borrower or other dispositions to any Loan Party or by any a Wholly-Owned Subsidiary of the Borrower that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions a Restricted Payment that is permitted by Section 6.035.16 or a Permitted Investment;
(e) Investments permitted the Incurrence of Permitted Liens and, subject to the Intercreditor Agreement, the Disposition of assets subject to such Liens by Section 6.04, Permitted or on behalf of the Person holding such Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale Disposition of defaulted receivables accounts in accordance with industry practice in connection with the ordinary course of business and not as part of an accounts receivables financing transactioncompromise or collection thereof;
(g) sales, transfers, leases any Disposition of cash 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 the Net Proceeds thereof are applied in accordance with Section 2.11(b)Cash Equivalents;
(h) Permitted Business Acquisitions (including any merger the lease, assignment or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or licenses (on a nonsub-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), lease of any property in the ordinary course of business;
(i) any surrender or waiver of contract rights or the settlement, release or surrender of contract rights or other litigation claims in the ordinary course of business;
(j) salessales of assets that have become worn out, leases obsolete or other dispositions of inventory of the Company damaged or any Subsidiary determined by the management of the Company to be no longer useful or necessary otherwise unsuitable for use in the operation of connection with the business of the Borrower or any Loan Party or Subsidiaryof its Subsidiaries;
(k) the license of patents, trademarks, copyrights, software applications and know-how to Subsidiaries of the Borrower and to third Persons in the ordinary course of business;
(l) the Disposition of precious metals in the ordinary course of business;
(m) Dispositions of motor vehicles securing consumer loans made by the Borrower and its Subsidiaries in the ordinary course of business;
(n) sales of loans receivable and related assets of the type specified in the definition of “Qualified Receivables Transaction” to a Receivables Entity in connection with a Qualified Receivables Transaction;
(o) transfers of loans receivable and related assets of the type specified in the definition of “Qualified Receivables Transaction” by a Receivables Entity in a Qualified Receivables Transaction;
(p) [***]
(q) [reserved]; provided and
(r) other Dispositions of assets to persons other than the Borrower and its Subsidiaries with a Fair Market Value not in excess of $5 million without the prior written consent of the Required Ad Hoc Group Lenders; provided, that (i) the Net Proceeds thereof thereof, if any, are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant 2.14 to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, extent required thereby and (ii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange Dispositions shall comply with aggregate gross consideration in excess the immediately following paragraph of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to this Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed5.19. Notwithstanding anything to the contrary contained in Section 6.05 aboveSection 5.19, (i) no sale, transfer or other disposition Disposition of assets under Section 5.19(p)(A) or Section 5.19(r) shall be permitted by this Section 6.05 unless (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (cx) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition Disposition is for at least 75% cash consideration Fair Market Value, and (iiiy) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% of the consideration for such Disposition received by the Borrower and its Subsidiaries consists of cash considerationor Cash Equivalents; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of this clause (iiiy), each of the following shall be deemed to be cash: (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the CompanyBorrower’s or such Subsidiary’s most recent balance sheet sheet) of the Borrower or in any Subsidiary of the notes theretoBorrower (other than contingent liabilities and liabilities that are by their terms subordinated to any of the Obligations or any Guaranty thereof) that is are assumed by the transferee of any such assets shall be deemed and with respect to be cashwhich the Borrower or such Subsidiary is unconditionally released from further liability, and (b) any notes or other obligations or other securities or assets received by the Company Borrower or such Subsidiary from the transferee that are converted by the Company Borrower or such Subsidiary into cash or Cash Equivalents within 180 45 days after receipt thereof (to the extent of the cash or Cash Equivalents received) ). Notwithstanding anything to the contrary set forth in this Section 5.19, no Loan Party shall be deemed make any Disposition to be any Subsidiary that is not a Loan Party consisting of any intellectual property or any other assets (other than cash and (cCash Equivalents) any Designated Non-Cash Consideration received by material to the Company or any operations of the Borrower and its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 ordinary course of $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 cashbusiness.
Appears in 1 contract
Samples: First Lien Credit Agreement (CURO Group Holdings 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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company 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 that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company or any Subsidiary and the sale of receivables by any Foreign Subsidiary pursuant to non-recourse factoring arrangements in the ordinary course of business of Amended and Restated Revolving Credit Agreement such Foreign Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower Company in a transaction in which such Borrower the Company is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Company or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrowerthe Company) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan 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) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments Dividends permitted by Section 6.066.06 and capital expenditures;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that (i) the Net Proceeds thereof are applied aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in accordance with reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Company, 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 2.11(b)5.04, (ii) no Default or Event of Default exists or would result therefrom; (iii) immediately after giving effect thereto, the Revolving Amended and Restated Revolving Credit Agreement Facility Credit Exposure shall not exceed the Borrowing Base calculated on a Pro Forma Basis after giving effect to such sale, transfer, lease or other disposition, and (iv) immediately after giving effect to any such sale, lease, transfer, lease or other disposition of Accounts or Inventory not undertaken in the ordinary course of business, the Revolving Facility Credit Exposure shall not exceed the Borrowing Base;
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation (i) involving a Borrowerthe Company, such Borrower the Company 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, charters or 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 Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reservedReserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided 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 an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0420.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of Holdings or the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, 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, therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect theretoto such exchange, the Company Revolving Facility Credit Exposure shall be in not exceed the Borrowing Base calculated on a Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)Basis after giving effect to such exchange;
(n) any disposition the sale of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vesseldescribed on Schedule 6.05; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowedBusiness Combination. Amended and Restated Revolving Credit Agreement Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c(c) hereofof this Section 6.05) unless such disposition is for fair market value, value and (ii) no sale, transfer or other disposition of assets in excess of $15 million shall be permitted by paragraph (a) or (d(g) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iiiii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the Company’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company (other than liabilities that is are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cashassets, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary of the Company from the such transferee that are converted by the Company or such Subsidiary of the Company into cash within 180 days after of the receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)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 $[*] million and [*]3.0% of Consolidated Total Assets as and $100 million at the time of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 Company 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 Company in order to evidence the foregoing. Anything contained herein to the contrary notwithstanding, (A) neither the Company nor any other Loan Party shall sell or otherwise dispose of any Inventory or Accounts (other than sales of Inventory in the ordinary course of business and sales of Accounts for collection) if, as a result of such sale or other disposition, the Revolving Facility Credit Exposure would exceed the Borrowing Base, in each case determined as of the time of such sale or other disposition, and (B) none of the capital stock of any Borrower shall be sold or transferred, nor shall any Borrower enter into any merger or similar transaction in which such Borrower is not the surviving entity, unless in any such case (1) the obligations of such Borrower are assumed by another Borrower on terms reasonably acceptable to the Administrative Agent, (2) such event would not result in a Default or an Event of Default, and (3) the portion of the Revolving Facility Credit Exposure of the assuming Borrower does not exceed the portion of the Borrowing Base attributable to the Accounts and Inventory of the assuming Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Plastics Holding 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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of assets, or a division of, any other personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company Holdings or any Subsidiary Subsidiary, (ii) the acquisition of an any other asset in the ordinary course of business by Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of the Company’s business by Holdings or any Subsidiary’s business, (iiiv) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is leases and subleases in the ordinary course of such Loan Party’s business by Holdings or Subsidiary’s business, any Subsidiary or (iiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than the Co-Borrower) into a Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a Domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person Person other than a Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company Holdings determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Holdings and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation merger or consolidation of any Subsidiary that is a Delaware Divided Celanese Holdings, LLC with and into Crystal Holdings 3 LLC (“Crystal 3”), its direct parent, and the immediate subsequent merger of Crystal 3, as surviving entity of such merger, with and into the Company, as described in the Amendment Agreement; provided that, for the avoidance of doubt, there shall be no release of the Guarantee of Celanese Holdings, LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries Holdings shall have complied with executed the requirements of Section 5.10Supplement to the Guarantee and Collateral Agreement as set forth in the Amendment Agreement;
(c) sales, transfers, leases leases, issuances or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases, issuances or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided, further, that the aggregate gross proceeds of any sales, transfers, leases, issuances or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Domestic Subsidiary Loan Party in reliance upon this paragraph (c) (other than any thereof made by a Foreign Subsidiary Loan Party to another Foreign Subsidiary Loan Party) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed, in any fiscal year of Holdings, 7.5% of Consolidated Total Assets as of the Co-Borrower to end of the immediately preceding fiscal year; provided that for any other Subsidiarygiven fiscal year this 7.5% limitation may be increased by no more than 50% of the unused amount for the previous fiscal year and, including without limitationin the event of any such carryover, a Permitted Vessel Transferassets sales in such fiscal year will be deducted first from the carried over amount;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.046.04 (including, Permitted Liensfor the avoidance of doubt, any transfers among Subsidiaries permitted pursuant to paragraphs (u), (v) and dividends(w) of Section 6.04 whether or not meeting the definition of “Investment”), Liens permitted by Section 6.02 and dividends and distributions and other payments permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases 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 the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof issuances (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received Equity Interests in a Person then owned by Holdings and without giving effect to subsequent changes in valueits Subsidiaries) shall be deemed to be cash.or other dispositions not otherwise permitted by this
Appears in 1 contract
Samples: Amendment Agreement (Celanese Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. Merge (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, 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, including effected pursuant to a Delaware LLC Division) all or any part of its substantially all the assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests ) of the Company or any SubsidiaryU.S. Borrower, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary may (other than x) merge into the Co-Borrower) into a U.S. Borrower in a transaction in which such the U.S. Borrower is the survivorsurviving corporation, (y) liquidate or dissolve into the U.S. Borrower or (z) dispose of all or substantially all its assets to the U.S. Borrower, in each case, so long as no person other than the U.S. Borrower or a wholly owned Subsidiary of any Borrower receives any consideration, (ii) the merger or consolidation of any Subsidiary may (other than the Co-Borrowerx) merge into or consolidate with any other Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower or a Subsidiary Guarantor receives any considerationSubsidiary, (iiiy) the merger liquidate or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor dissolve into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (viz) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing dispose of all or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each substantially all of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower its assets to any other Subsidiary, including without limitationin each case, so long as no person other than the U.S. 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, or transferee in, such transaction shall be a Loan Party, and provided further that, if both parties to any such transaction are Loan Parties, but one is Melody or an Investment Subsidiary, the surviving entity of, or transferee in, such transaction may not be Melody or such Investment Subsidiary), (iii) any Immaterial Subsidiary may be liquidated or dissolved and (iv) the U.S. Borrower and the Subsidiaries may make Permitted Vessel Transfer;Acquisitions.
(db) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, engage in any other Asset Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;except:
(i) leases(x) any such Asset Sale the consideration for which is at least 75% cash, charters or licenses (on a non-exclusive basis with respect y) such consideration is at least equal to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), of any property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory fair market value of the Company assets being sold, transferred, leased or any Subsidiary determined by disposed of and (z) the management fair market value of the Company to be no longer useful all assets sold, transferred, leased or necessary in the operation disposed of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that this clause (i) at least [*]shall not exceed in any fiscal year 5% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the preceding fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)year;
(nii) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for such Asset Sale, the purposes consideration for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply equal to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (with the fair market value of each item the assets being sold, transferred, leased or disposed of; provided that such sale, transfer, lease or disposal is (A) made to obtain antitrust approval for a Permitted Acquisition or (B) of Designated Nonnon-Cash Consideration being measured core assets acquired pursuant to a Permitted Acquisition so long as (1) at the time received of, and after giving effect to, any Asset Sale described in this clause (B), the Leverage Ratio would not exceed 2.50 to 1.00 or (2) the Net Cash Proceeds thereof (without giving effect to subsequent changes the proviso in valuethe definition of such term allowing for the reinvestment thereof) shall will be deemed used substantially concurrently with the receipt thereof to prepay Term Loans in accordance with Section 2.13(c));
(iii) sales by the U.S. Borrower or the Subsidiaries of brokerage offices, or transfers of the assets of brokerage offices and related assets, to joint ventures in the ordinary course of business; and
(iv) sales of Receivables pursuant to a Receivables Securitization; provided that (x) the material terms and conditions and the structure of such Receivables Securitization have been approved by the Administrative Agent (such approval not to be cashunreasonably withheld or delayed), (y) the aggregate Receivables Securitization Amount outstanding at any time in respect of all Receivables Securitizations entered into by the U.S. Borrower and the Domestic Subsidiaries does not exceed $100,000,000 and (z) the aggregate Receivables Securitization Amount outstanding at any time in respect of all Receivables Securitizations entered into exclusively by the Foreign Subsidiaries does not exceed $100,000,000 (any Receivables Securitization meeting the criteria of this Section 6.04(b)(iii) being referred to herein as a “Permitted Receivables Securitization”).
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 itit (including by division), or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions, transactions including effected pursuant by allocation of any assets to a Delaware LLC Divisionseries of a limited liability company) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, Subsidiary or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all of any division, unit or any substantial part of the assets business of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary lease, purchase and sale of an asset or other property inventory, in each case, in the ordinary course of business by the Company’s Borrower or Subsidiary’s businessany Subsidiary and sales of accounts receivables pursuant to the terms of a Permitted Credit Support Arrangement, (ii) any the acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is asset in the ordinary course of such Loan Party’s business by the Borrower or any Subsidiary’s business, or (iii) the sale or other Dispositions of Permitted Investments by any Loan Party (x) inventory, goods held for sale or Subsidiaryimmaterial assets, so long as such sale is in each case, in the ordinary course of such business and (y) worn out, obsolete, scrap or surplus assets or assets no longer useful in the conduct of the business of the Loan Party’s Parties and their Subsidiaries or Subsidiary’s otherwise economically impracticable to maintain, or (iv) the sale of Cash Equivalents in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto thereafter no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of (x) any Domestic Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary GuarantorLoan Party or (y) any Foreign Subsidiary into or with any Subsidiary Loan Party in a transaction in which 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 a the Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) in accordance with Section 5.01(a)(ii) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form or dissolution is in the best interests of the Company Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions 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 or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan Party in an amount in excess of $11,500,000 shall not be permitted under this clause (c);
(d) any Disposition of Securitization Assets or Permitted Securitization Cash Collateral to a Securitization Subsidiary or any Securitization Provider (solely to the extent subject to a Qualified Securitization Financing) and in the case of the PNC Securitization Financing, solely to the extent such Disposition is prior to the Purchase and Sale Termination Date but giving effect to any extension thereof (as defined in the PNC Purchase and Lease-Back Transactions permitted by Section 6.03Sale Agreement as in effect on the date hereof);
(e) Investments permitted by Section 6.046.04 (other than Section 6.04(v)), Permitted Liens, and dividends, distributions and other payments Liens permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.6.02
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company 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 that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company or any Subsidiary and the 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 lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower Company in a transaction in which such Borrower the Company is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Company or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrowerthe Company) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan 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) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments Dividends permitted by Section 6.066.06 and capital expenditures;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that (i) the Net Proceeds thereof are applied aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in accordance with reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Company, 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 2.11(b)5.04, (ii) no Default or Event of Default exists or would result therefrom; (iii) immediately after giving effect thereto, the Revolving Facility Credit Exposure shall not exceed the Borrowing Base calculated on a Pro Forma Basis after giving effect to such sale, transfer, lease or other disposition, and (iv) immediately after giving effect to any such sale, lease, transfer, lease or other disposition of Accounts or Inventory not undertaken in the ordinary course of business, the Revolving Facility Credit Exposure shall not exceed the Borrowing Base;
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation (i) involving a Borrowerthe Company, such Borrower the Company 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, charters or 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 Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reserved]the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided, that, after giving effect to each such purchase and sale or other transfer, the Borrower shall be in compliance with Section 2.11(b);
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided 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 an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0420.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of Holdings or the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, 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, therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect theretoto such exchange, the Company Revolving Facility Credit Exposure shall be in not exceed the Borrowing Base calculated on a Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)Basis after giving effect to such exchange;
(n) any disposition the sale of any assets owned by any New Vessel Subsidiary or described on Schedule 6.05;
(o) the sale of any Vessel that is not a Mortgaged Vesselassets as part of the Specified Asset Sale; and
(op) disposals the purchase and sale or other transfer of cash raised Receivables Assets in connection with a Permitted Supplier Finance Facility; provided, that, after giving effect to each such purchase and sale or borrowed for other transfer, the purposes for which such cash was raised or borrowedBorrower shall be in compliance with Section 2.11(b). Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c(c) hereofof this Section 6.05) unless such disposition is for fair market value, value and (ii) no sale, transfer or other disposition of assets in excess of $15 million shall be permitted by paragraph (a) or (d(g) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iiiii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the Company’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company (other than liabilities that is are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cashassets, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary of the Company from the such transferee that are converted by the Company or such Subsidiary of the Company into cash within 180 days after of the receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)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 $[*] million and [*]3.0% of Consolidated Total Assets as and $100 million at the time of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 Company 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 Company in order to evidence the foregoing. Anything contained herein to the contrary notwithstanding, (A) neither the Company nor any other Loan Party shall sell or otherwise dispose of any Inventory or Accounts (other than sales of Inventory in the ordinary course of business and sales of Accounts for collection) if, as a result of such sale or other disposition, the Revolving Facility Credit Exposure would exceed the Borrowing Base, in each case determined as of the time of such sale or other disposition, and (B) none of the capital stock of any Borrower shall be sold or transferred, nor shall any Borrower enter into any merger or similar transaction in which such Borrower is not the surviving entity, unless in any such case (1) the obligations of such Borrower are assumed by another Borrower on terms reasonably acceptable to the Administrative Agent, (2) such event would not result in a Default or an Event of Default, and (3) the portion of the Revolving Facility Credit Exposure of the assuming Borrower does not exceed the portion of the Borrowing Base attributable to the Accounts and Inventory of the assuming Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Plastics Group Inc)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary the Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary the Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a Subsidiary the Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor the Borrower into or with any other Subsidiary that is not a Subsidiary Guarantorthe Borrower, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a the Borrower, such the Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a the Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Incremental Assumption Agreement (Norwegian Cruise Line Holdings Ltd.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or liquidate or dissolve, or sell, transfer, lease lease, issue or otherwise dispose of (in one transaction or in a series of transactions, including effected pursuant to a Delaware LLC Division) all or any part of its substantially all the assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose ) of any Borrower or less than all the Equity Interests of the Company or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) any disposal by the Company or any Subsidiary of an asset or other property in the ordinary course of the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than may merge into the Co-Borrower) into a Borrower Company in a transaction in which such Borrower the Company is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) may merge into or consolidate with any other Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Company or a Subsidiary Guarantor receives any considerationconsideration (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 and (B) a Domestic Subsidiary, the surviving entity of such transaction shall be a Domestic Subsidiary), (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into may liquidate or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrower) dissolve if the Company determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Borrowers and is not materially disadvantageous to Lendersthe Lenders and (iv) the Company and the Subsidiaries may make Permitted Acquisitions.
(b) Liquidate, dissolve, sell, transfer, lease, issue or otherwise dispose of (vin one transaction or in a series of transactions and whether by merger or consolidation or otherwise) any disposition to effect of the formation Equity Interests of NRG Mid-Atlantic, NRG Northeast or NRG South Central or all or any Subsidiary that is significant portion of the assets, including assets consisting of Equity Interests (whether now owned or hereafter acquired), of NRG Mid-Atlantic and its subsidiaries, taken as a Delaware Divided LLC whole, NRG Northeast and would otherwise not be prohibited hereunder; provided that any disposition its subsidiaries, taken as a whole, or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary NRG South Central and its subsidiaries (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 NRG Sterlington Power LLC, Bayou Cove Peaking Power LLC and Big Cajun I Peaking Power LLC for so long as the continuing or surviving person such entities shall be constitute Excluded Project Subsidiaries), taken as a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;whole.
(c) sales, transfers, leases or other dispositions to Engage in any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Asset Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 under paragraph (or required to be included in this clause (ga) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a Borrower, such Borrower is the surviving corporation;
above unless (i) leases, charters or licenses such Asset Sale is for consideration at least 75% of which is cash (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), and no portion of any property the remaining consideration shall be in the ordinary course form of business;
(j) sales, leases or other dispositions of inventory Indebtedness of the Company or any Subsidiary determined by the management of the Company to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of or, in the event case of an exchange the Specified Joint Venture Sales, such consideration shall be at least equal to the value prescribed by the agreements relating to such Specified Joint Ventures as of the date hereof, (iii) prior to the execution of a legally binding agreement to consummate (A) any Asset Sale which shall relate to assets (other than the Specified Assets Held for Sale) with a fair market value in excess of $100,000,000 or (B) if the greater fair market value of all assets (xother than the Specified Assets Held for Sale) sold, transferred, leased or disposed of pursuant to this paragraph (c) shall exceed $[*] 100,000,000 in any fiscal year, each Asset Sale thereafter during such fiscal year, the Company shall have received written confirmation from each of S&P and (y) [*]% of Consolidated Total Assets Xxxxx'x that the credit ratings assigned by such entities to the facility provided for herein shall be no lower than such ratings assigned by S&P and Xxxxx'x, as of the end of the fiscal quarter case may be, to such facility immediately prior to the date time that S&P and Xxxxx'x, as the case may be, shall have become aware of such exchange proposed Asset Sale, the use of the proceeds thereof and all transactions related thereto, in each case after giving effect to such Asset Sale, the use of the proceeds thereof and all transactions related thereto and (iv) no Event of Default or Default shall have occurred and be continuing and the Company would be in compliance with the covenants set forth in Sections 6.10, 6.11, 6.12, 6.13 and 6.14 as of the most recently completed period ending prior to such transaction for which financial statements and certificates required by Section 5.04(a) or 5.04(b) were required to have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange or for which comparable financial statements have been delivered pursuant filed with Securities and Exchange Commission, in each case after giving effect to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration transactions and to any other event occurring during such period as to which pro forma recalculation is appropriate (including exchange assets, any other non-cash consideration transaction described in this paragraph occurring after such period) as if such transaction (and cash proceeds) the repayment of any or all assets exchanged Indebtedness in reliance upon this paragraph (mconnection therewith) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets had occurred as of the end first day of the fiscal quarter immediately prior such period.
(d) Engage in any Asset Sale that relates to the date Specified Assets Held for Sale unless the Net Asset Sale Proceeds with respect thereto shall be deposited and held at all times pending the uses specified below in a segregated Deposit Account or Securities Account with an internationally recognized commercial bank, which Deposit Account or Securities Account shall be an account of a Loan Party if the applicable Specified Assets Held for Sale were sold by a Loan Party and, if such account is an asset of a Loan Party, shall be Collateral in respect of which a Control Agreement shall be executed and delivered; provided that upon the giving of notice by the Company to the Administrative Agent at any time such Net Asset Sale Proceeds may be used for the following purposes so long as at the time of such incurrence for which financial statements have been delivered pursuant to Section 5.04use, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] both before and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, no Event of Default or Default shall have occurred and be continuing: (i) if such proceeds result from the sale of the Equity Interests in any U.S. Person or any other assets 100 located in the United States, such proceeds may be used for general corporate purposes or acquisitions in a manner consistent with the other terms and provisions of this Agreement and (ii) if such proceeds result from the sale of the Equity Interests in any person other than a U.S. Person or any other assets located outside the United States, such proceeds may only be used to (A) make a Permitted Acquisition of, or other investment in, a person that is incorporated, formed or organized under the laws of (or operates substantially all of its business in) a Designated Country, in each case consistent with the other terms and provisions of this Agreement or (B) following the repatriation of such proceeds from a Foreign Subsidiary to the Company shall or a Domestic Subsidiary, such proceeds (net of the Company's good faith estimate of any taxes to be paid or payable in Pro Forma Compliance, each case in connection with the repatriation of such proceeds) may be used for general corporate purposes or acquisitions in a manner consistent with the other terms and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);provisions of this Agreement.
(ne) any disposition Sell, transfer, lease or otherwise dispose of any assets owned by interest in any New Vessel Subsidiary facility, equipment or other item of property or asset located on Mortgaged Property (other than any Vessel such facility, equipment or other item of property or asset that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed necessary for the purposes for which use, operation or maintenance of the operations conducted on or related to such cash was raised or borrowed. Notwithstanding anything Mortgaged Property) 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 any person (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary Subsidiary) unless the Company shall provide to the Administrative Agent (simultaneously with or prior to such sale, transfer, lease or other Indebtedness disposition) a certificate of a Subsidiary an independent engineering firm of recognized standing certifying that is not a Loan Party (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cashsale, (b) any notes transfer, lease or other obligations disposition shall not materially and adversely affect the applicable Loan Party's ability to use, operate or other securities maintain the operations conducted on or assets received by the Company or related to such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 cashMortgaged Property.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy Inc)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company any Borrower or any SubsidiarySubsidiary or preferred equity interests of the Domestic 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 personPerson, except that this Section shall not prohibit:
(a) (i) any disposal the sale of inventory, supplies, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Company Domestic Borrower or any Subsidiary Subsidiary, (ii) the sale of an any other asset in the ordinary course of business by the Domestic 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 Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Domestic Borrower or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefromcontinuing, (i) the merger of any Subsidiary (other than the Co-Borrower) into a any Borrower in a transaction in which such Borrower is the survivorsurviving corporation, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than a such Borrower or a Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary Guarantor, Loan Party or (iv) the liquidation or dissolution (other than the Borrowers) or change in form of entity of the Domestic Borrower or any Subsidiary (other than a Borrower) if the Company Domestic Borrower determines in good faith that such liquidation, liquidation or dissolution or change in form is in the best interests of the Company Domestic Borrower and is not materially disadvantageous to the Lenders, (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Domestic Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary Guarantor that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (h) below shall not exceed the Co-Borrower amounts permitted to any other Subsidiary, including without limitation, a Permitted Vessel Transferbe invested in such entities pursuant to Section 6.04;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Liens permitted by Section 6.02 and dividends, distributions and other payments Dividends permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(gh) sales, transfers, leases 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))6.05; provided, provided that the Net Proceeds thereof are applied aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in accordance with Section 2.11(b)reliance upon this paragraph (h) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the Domestic Borrower, 5.00% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(hi) Permitted Business Acquisitions (including any merger or consolidation in order to effect connection with a Permitted Business Acquisition); provided, provided that following any such merger or consolidation (i) involving a any Borrower, such Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a domestic Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(ij) leases, charters licensing and cross-licensing arrangements involving any technology or licenses (on a non-exclusive basis with respect to other intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property), property of any property Borrower or any Subsidiary in the ordinary course of business;; and
(jk) sales, leases or other dispositions of inventory of the Company or any Subsidiary Domestic Borrower and its Subsidiaries determined by the management of the Company any Borrower to be no longer useful or necessary in the operation of the business of the Domestic Borrower or any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged Vessel; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowedSubsidiaries. Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) the Domestic Borrower shall at all times own, directly or indirectly, at least 85% of the Equity Interests of each other Borrower, in each case, free and clear of any Liens other than the Liens created by the Security Documents, (ii) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c(c) hereof and purchases, sales or transfers pursuant to paragraph (f) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g(a), (d), (f) or (k) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration and (vii) no sale, transfer or other disposition of assets in excess of $10.0 million shall be permitted by paragraph (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions for purposes of clause clauses (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the CompanyDomestic Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Domestic Borrower or any Subsidiary of the Domestic Borrower that is assumed by the transferee of any such assets shall be deemed to be cash, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary from the transferee that are converted by the Company or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company 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 this Section shall not prohibit:
(a) (i) any disposal by the Company Borrower or any Subsidiary of an asset or other property in the ordinary course of the CompanyBorrower’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, or (iii) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower in a transaction in which such the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or a Subsidiary Guarantor receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor into or with any other Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) if the Company Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company Borrower and is not materially disadvantageous to Lenders, Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to any Loan Party or by any Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel Transfer;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation involving a the Borrower, such the Borrower is the surviving corporation;
(i) leases, charters or 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 property in the ordinary course of business;
(j) sales, leases or other dispositions of inventory of the Company Borrower or any Subsidiary determined by the management of the Company Borrower to be no longer useful or necessary in the operation of the business of any Loan Party or Subsidiary; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b);
(k) acquisitions and purchases made with the proceeds of any Asset Sale pursuant to the first proviso of paragraph (a) of the definition of “Net Proceeds”;
(l) [reserved];
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least [*]% 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 an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company Borrower with respect to such fair market value and (iii) in the event of an exchange with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, such exchange shall have been approved by at least a majority of the board of directors of the CompanyBorrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the CompanyBorrower, the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, (B) no Default or Event of Default exists or would result therefrom, (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect thereto, the Company Borrower shall be in Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b);
(n) any disposition of any assets owned by any New Vessel Subsidiary or of any Vessel that is not a Mortgaged VesselSubsidiary; and
(o) disposals of cash raised or borrowed for the purposes for which such cash was raised or borrowed. 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 or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iii), (a) the amount of any secured Indebtedness of the Company Borrower or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the CompanyBorrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) that is assumed by the transferee of any such assets shall be deemed to be cash, cash and (b) any notes or other obligations or other securities or assets received by the Company Borrower or such Subsidiary from the transferee that are converted by the Company Borrower or such Subsidiary into cash within 180 days after receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries having an aggregate fair market value (as determined in good faith by the Company), 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 $[*] million and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
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, including effected pursuant to a Delaware LLC Division) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Company 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 that this Section shall not prohibit:
(a) (i) any disposal the purchase and sale of inventory in the ordinary course of business by the Company or any Subsidiary and the 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 lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Company or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Company’s or Subsidiary’s business, (ii) any acquisition (in one or a series of transactions) by any Loan Party or Subsidiary of all Company or any substantial part of the assets or other property of any other person, so long as such acquisition is in the ordinary course of such Loan Party’s or Subsidiary’s business, Subsidiary or (iiiiv) the sale of Permitted Investments by any Loan Party or Subsidiary, so long as such sale is in the ordinary course of such Loan Party’s or Subsidiary’s business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger of any Subsidiary (other than into the Co-Borrower) into a Borrower Company in a transaction in which such Borrower the Company is the survivor, (ii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) into or with any Subsidiary Guarantor Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Guarantor, Loan Party and, in the case of each of clauses (i) and (ii), no person other than a Borrower the Company or a 131 Subsidiary Guarantor Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary (other than the Co-Borrower) that is not a Subsidiary Guarantor Loan Party into or with any other Subsidiary that is not a Subsidiary GuarantorLoan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a Borrowerthe Company) if the Company determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Company and is not materially disadvantageous to Lenders, the Lenders or (v) any disposition to effect the formation of any Subsidiary that is a Delaware Divided LLC and would otherwise not be prohibited hereunder; provided that any disposition or other allocation of any assets (including any equity interests of such Delaware Divided LLC) in connection therewith is otherwise permitted hereunder or (vi) any Subsidiary (other than the Co-Borrower) may merge with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging Subsidiary was a Loan Party and which together with each of their its Subsidiaries shall have complied with the requirements of Section 5.10;
(c) sales, transfers, leases or other dispositions to the Company or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party or by any to a Subsidiary that is not a Subsidiary Guarantor or the Co-Borrower to any other Subsidiary, including without limitation, a Permitted Vessel TransferLoan 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) Sale and Lease-Back Lease‑Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, and dividends, distributions and other payments Dividends permitted by Section 6.066.06 and capital expenditures;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (or required to be included in this clause (g) pursuant to Section 6.05(c)); provided, that (i) the Net Proceeds thereof are applied aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in accordance with reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Company, 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 2.11(b)5.04, (ii) no Default or Event of Default exists or would result therefrom; (iii) immediately after giving effect thereto, the Revolving Facility Credit Exposure shall not exceed the Borrowing Base calculated on a Pro Forma Basis after giving effect to such sale, transfer, lease or other disposition, and (iv) immediately after giving effect to any such sale, lease, transfer, lease or other disposition of Accounts or Inventory not undertaken in the ordinary course of business, the Revolving Facility Credit Exposure shall not exceed the Borrowing Base;
(h) Permitted Business Acquisitions (including any merger or consolidation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation (i) involving a Borrowerthe Company, such Borrower the Company 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; 132
(i) leases, charters or 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 Company or any Subsidiary and its Subsidiaries determined by the management of the Company to be no longer useful or necessary in the operation of the business of the Company or any Loan Party or Subsidiary; provided that of the Net Proceeds thereof are applied in accordance with Section 2.11(b)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) [reserved]the purchase and sale or other transfer (including by capital contribution) of Receivables Assets pursuant to Permitted Receivables Financings; provided, that, after giving effect to each such purchase and sale or other transfer, the Borrower shall be in compliance with Section 2.11(b);
(m) any exchange of assets for services and/or other assets of comparable or greater value; provided 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 an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0410.0 million, the Administrative Agent shall have received a certificate from a Responsible Officer of the Company with respect to such fair market value and (iii) in the event of an exchange a swap with a fair market value in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.0420.0 million, such exchange shall have been approved by at least a majority of the board Board of directors Directors of Holdings or the Company; provided, further, that (A) the aggregate gross consideration (including exchange assets, other non-cash noncash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of the Company, 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, therefrom and (C) with respect to any such exchange with aggregate gross consideration in excess of the greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such exchange for which financial statements have been delivered pursuant to Section 5.04, immediately after giving effect theretoto such exchange, the Company Revolving Facility Credit Exposure shall be in not exceed the Borrowing Base calculated on a Pro Forma Compliance, and (D) the Net Proceeds, if any, thereof are applied in accordance with Section 2.11(b)Basis after giving effect to such exchange;
(n) any disposition the sale of any assets owned by any New Vessel Subsidiary or described on Schedule 6.05;
(o) the sale of any Vessel that is not a Mortgaged Vesselassets as part of the Specified Asset Sale; and
(op) disposals the purchase and sale or other transfer of cash raised Receivables Assets in connection with a Permitted Supplier Finance Facility; provided, that, after giving effect to each such purchase and sale or borrowed for other transfer, the purposes for which such cash was raised or borrowedBorrower shall be in compliance with Section 2.11(b). Notwithstanding anything to the contrary contained in Section Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section Section 6.05 (other than sales, transfers, leases leases, licenses or other dispositions to Loan Parties pursuant to paragraph (c(c) hereofof this Section 6.05) unless such disposition is for fair market value, value and (ii) no sale, transfer or other disposition of assets in excess of $15 million shall be permitted by paragraph (a) or (d(g) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (g) of this Section Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) or (iii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $[*] or to other transactions involving assets with a fair market value of not more than the greater of $[*] and [*]% of Consolidated Total Assets in the aggregate for all such transactions during the term of this Agreement; provided, further, that for purposes of clause (iiiii), (a) the amount of any secured Indebtedness of the Company or any Subsidiary or other Indebtedness of a Subsidiary that is not a Loan Party liabilities (as shown on the Company’s or such any Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any Subsidiary of the Company (other than liabilities that is are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets shall be deemed to be cashassets, (b) any notes or other obligations or other securities or assets received by the Company or such Subsidiary of the Company from the such transferee that are converted by the Company or such Subsidiary of the Company into cash within 180 days after of the receipt thereof (to the extent of the cash received) shall be deemed to be cash and (c) any Designated Non-Cash Consideration received by the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value (as determined in good faith by the Company)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 $[*] million and [*]3.0% of Consolidated Total Assets as and $100 million at the time of the end of the fiscal quarter immediately prior to the date of receipt of such Designated Non-Cash Consideration for which financial statements have been delivered pursuant to Section 5.04 (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 Company 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 Company in order to evidence the foregoing. Anything contained herein to the contrary notwithstanding, (A) neither the Company nor any other Loan Party shall sell or otherwise dispose of any Inventory or Accounts (other than sales of Inventory in the ordinary course of business and sales of Accounts for collection) if, as a result of such sale or other disposition, the Revolving Facility Credit Exposure would exceed the Borrowing Base, in each case determined as of the time of such sale or other disposition, and (B) none of the capital stock of any Borrower shall be sold or transferred, nor shall any Borrower enter into any merger or similar transaction in which such Borrower is not the surviving entity, unless in any such case (1) the obligations of such Borrower are assumed by another Borrower on terms reasonably acceptable to the Administrative Agent, (2) such event would not result in a Default or an Event of Default, and (3) the portion of the Revolving Facility Credit Exposure of the assuming Borrower does not exceed the portion of the Borrowing Base attributable to the Accounts and Inventory of the assuming Borrower. 133
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