Mergers, Consolidations, Sales. of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of Intermediate Holdings, the U.S. Borrower or any Subsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit: (i) the purchase and sale of inventory in the ordinary course of business by the U.S. Borrower or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the U.S. Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary into a Borrower in a transaction in which such Borrower is the surviving corporation, (ii) the merger or consolidation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than a Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution of any Subsidiary (other than a Borrower) if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower and is not materially disadvantageous to the Lenders; (c) sales, transfers, leases or other dispositions to the U.S. Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; (d) Sale and Lease-Back Transactions permitted by Section 6.03; (e) investments expressly permitted by Section 6.04; (f) the purchase and sale of accounts receivable and related assets pursuant to the Permitted Receivables Financing; (g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; 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) shall not exceed, in any fiscal year of the U.S. Borrower, 10% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; (i) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary; (j) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a Subsidiary in the ordinary course of business; and (k) a purchase of a substantial portion of the assets of TRW Koyo Steering Systems Company made on or prior to the 12-month anniversary of the Closing Date in an aggregate amount not to exceed the Koyo JV Purchase Amount at the time of such acquisition. Notwithstanding anything to the contrary contained above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate 210 Holdings, (ii) Intermediate Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, (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) thereof) unless such disposition is for fair market value and (v) no sale, transfer or other disposition of assets shall be permitted by paragraphs (a), (d) or (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration.
Appears in 2 contracts
Samples: Credit Agreement (TRW Automotive Inc), Credit Agreement (TRW Automotive 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) 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 Intermediate Holdings, the U.S. Borrower or any Subsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(ia) the purchase and sale of inventory in the ordinary course of business by the U.S. Borrower or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the U.S. Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary into a Borrower in a transaction in which such Borrower is the surviving corporation, (ii) the merger or consolidation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than a Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution of any Subsidiary (other than a Borrower) if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) investments expressly permitted by Section 6.04;
(f) the purchase and sale of accounts receivable and related assets pursuant to the Permitted Receivables Financing;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; 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) shall not exceed, in any fiscal year of the U.S. Borrower, 10% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(i) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving 113 or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(j) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a Subsidiary in the ordinary course of business; and
(k) a purchase of a substantial portion of the assets of TRW Koyo Steering Systems Company made on or prior to the 12-month anniversary of the Closing Date in an aggregate amount not to exceed the Koyo JV Purchase Amount at the time of such acquisition. Notwithstanding anything to the contrary contained above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate 210 Holdings, (ii) Intermediate Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, (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) thereof) unless such disposition is for fair market value and value, (v) no sale, transfer or other disposition of assets shall be permitted by paragraphs (a), ) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (vi) no sale, transfer or other disposition of assets in excess of $10,000,000 shall be permitted by paragraph (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (TRW Automotive Inc), Amendment and Restatement Agreement (TRW Automotive 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) 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 Intermediate Holdings, the U.S. Borrower or any Subsidiary or preferred equity interests of HoldingsSubsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(i) the lease, purchase and or sale of inventory or excess transponder capacity in the ordinary course of business by the U.S. Borrower or any Subsidiary; provided that the proceeds of any such sale of excess transponder capacity shall be included as revenue in the consolidated statement of operations of the Borrower or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the U.S. Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary into a the Borrower in a transaction in which such the Borrower is the surviving corporationsurvivor, (ii) the merger or consolidation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than a Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party shall be made in compliance with Section 6.07; provided, further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (k) below shall not exceed, in any fiscal year of the Borrower, $75.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) investments expressly Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(f) the purchase and any sale or other absolute transfer of accounts receivable and related assets pursuant to of the Permitted 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 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;
(j) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(hk) 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; 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 (hk) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the U.S. Borrower, 10% of Consolidated Total Assets as of $75.0 million provided further, that the end of the immediately preceding fiscal yearNet Proceeds thereof are applied in accordance with Section 2.11(b);
(il) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a the Borrower, such the Borrower is the surviving corporation, (ii) involving a domestic 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;
(jm) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a any Subsidiary in the ordinary course of business;
(n) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b); and
(ko) a purchase sales of a substantial portion of assets described on Schedule 6.05, provided that the assets of TRW Koyo Steering Systems Company made on or prior to the 12-month anniversary of the Closing Date Net Proceeds thereof are applied in an aggregate amount not to exceed the Koyo JV Purchase Amount at the time of such acquisitionaccorance with Section 2.11(b). Notwithstanding anything to the contrary contained in Section 6.05 above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate 210 Holdings, (ii) Intermediate Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, (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) thereofhereof) unless such disposition is for fair market value and Fair Market Value, (vii) no sale, transfer or other disposition of assets shall be permitted by paragraphs paragraph (a), (d) or (hn) 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 (k) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (ii) and (iii), the amount of any secured Indebtedness or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Borrower's or such Subsidiary's most recent balance sheet or in 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.
Appears in 1 contract
Mergers, Consolidations, Sales. of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of Intermediate Holdings, the U.S. Borrower or any Subsidiary (other than directors' qualifying shares) or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) (i) the purchase and purchase, lease, sublease or sale of inventory (including coal and related products and mining equipment held for sale) in the ordinary course of business by the U.S. Borrower Holdings or any Subsidiary, (ii) the acquisition acquisition, lease or sublease of any other asset in the ordinary course of business by the U.S. Borrower Holdings or any SubsidiarySubsidiary (including with respect to contract mining agreements), (iii) the sale or other disposition of surplus, obsolete or worn out equipment equipment, scrap or other property in the ordinary course of business by the U.S. Borrower Holdings or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary into a the Borrower in a transaction in which such the Borrower is the surviving corporationentity, (ii) the merger or consolidation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or Subsidiary a Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution of any Subsidiary (other than a the Borrower) or change in form of entity of Holdings or any Subsidiary if the U.S. Borrower Holdings determines in good faith that such liquidation or dissolution or change of entity form is in the best interests of the U.S. Borrower Holdings and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a 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 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 (g) below shall not exceed, in any fiscal year of Holdings, 5.0% 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 expressly Permitted Business Acquisitions and other Investments permitted by Section 6.04, Liens permitted by Section 6.02 and dividends and other distributions permitted by Section 6.06;
(f) the purchase and sale 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;
(hg) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; provided that the aggregate gross proceeds (including noncash non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (hg) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the U.S. BorrowerHoldings, 105% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(c);
(ih) any merger or consolidation in connection with a Permitted Business Acquisition, 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 Subsidiary 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;
(i) dispositions of Rebuild Equipment by either of the Rebuild Companies;
(j) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a any Subsidiary in the ordinary course of business;
(k) sales, leases, subleases or other dispositions of inventory, equipment, reserves or other assets of Holdings and its Subsidiaries determined by the management of Holdings or the Borrower to be no longer useful or necessary in the operation of the business of Holdings or any of the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with Section 2.11(c);
(l) the Transactions; and
(km) a the purchase and sale or other transfer (including by capital contribution) of a substantial portion of the assets of TRW Koyo Steering Systems Company made on or prior Receivables Assets pursuant to the 12-month anniversary of the Closing Date in an aggregate amount not to exceed the Koyo JV Purchase Amount at the time of such acquisitionPermitted Receivables Financings. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate 210 Holdingsthe Borrower free and clear of any Liens other than Liens created by the Security Documents, (ii) Intermediate Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, (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 leases, subleases or other dispositions to Loan Parties pursuant to paragraph (c) thereofhereof and purchases, sales or transfers pursuant to paragraph (f) hereof) unless such disposition is for fair market value and value, (viii) no sale, transfer or other disposition of assets shall be permitted by paragraphs (a), paragraph (d) or (hk) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iv) no sale, transfer or other disposition of assets in excess of $10.0 million shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that for purposes of clause (iii), the amount of any secured Indebtedness or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on Holdings' or such Subsidiary's most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be deemed 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) 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 Intermediate Holdings, the U.S. Borrower or any Subsidiary or preferred equity interests of HoldingsSubsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(i) the lease, purchase and or sale of inventory or excess transponder capacity in the ordinary course of business by the U.S. Borrower or any Subsidiary; provided that the proceeds of any such sale of excess transponder capacity shall be included as revenue in the consolidated statement of operations of the Borrower of such Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the U.S. Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary into a the Borrower in a transaction in which such the Borrower is the surviving corporationsurvivor, (ii) the merger or consolidation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than a Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution or change in form of entity of any Subsidiary (other than a the Borrower) if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party shall be made in compliance with Section 6.07; provided, further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred or leased in reliance upon paragraph (k) below shall not exceed, in any fiscal year of the Borrower, $75.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) investments expressly Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(f) the purchase and any sale or other absolute transfer of accounts receivable and related assets pursuant to of the Permitted 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 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 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;
(hk) 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; 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 (hk) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the U.S. Borrower, 10% of Consolidated Total Assets as of $75.0 million provided further, that the end of the immediately preceding fiscal yearNet Proceeds thereof are applied in accordance with Section 2.11(b);
(il) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a the Borrower, such the Borrower is the surviving corporation, (ii) involving a domestic 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;
(jm) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a any Subsidiary in the ordinary course of business;
(n) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or any of the Subsidiaries provided that the Net Proceeds thereof are applied in accordance with Section 2.11(b); and
(ko) a purchase sales of a substantial portion of assets described on Schedule 6.05, provided that the assets of TRW Koyo Steering Systems Company made on or prior to the 12-month anniversary of the Closing Date Net Proceeds thereof are applied in an aggregate amount not to exceed the Koyo JV Purchase Amount at the time of such acquisitionaccorance with Section 2.11(b). Notwithstanding anything to the contrary contained in Section 6.05 above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate 210 Holdings, (ii) Intermediate Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, (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) thereofhereof) unless such disposition is for fair market value and Fair Market Value, (vii) no sale, transfer or other disposition of assets shall be permitted by paragraphs paragraph (a), (d) or (hn) 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 (k) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (ii) and (iii), the amount of any secured Indebtedness or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Borrower's or such Subsidiary's most recent balance sheet or in 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.
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Samples: Second Lien Credit Agreement (Skyterra Communications 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) 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 Intermediate Holdings, the U.S. Borrower or any Subsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(i) the purchase and sale of inventory in the ordinary course of business by the U.S. Borrower Holdings or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower Holdings or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the U.S. Borrower Holdings or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary into a the Borrower in a transaction in which such the Borrower is the surviving corporation, (ii) the merger or consolidation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than a the Borrower or Subsidiary a Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution of any Subsidiary (other than a the Borrower) or change in form of entity of Holdings or any Subsidiary if the U.S. Borrower Holdings determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower Holdings and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a 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 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 end of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) investments expressly Investments permitted by Section 6.04, Liens permitted by Section 6.02 and Dividends permitted by Section 6.06;
(f) the purchase and sale or other transfer (including by capital contribution) of accounts receivable and related assets Receivables Assets pursuant to the Permitted Receivables FinancingFinancings;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; provided that the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (h) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of the U.S. BorrowerHoldings, 105% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(c);
(i) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a the Borrower, such the Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary 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;
(j) [Intentionally omitted];
(k) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a any Subsidiary in the ordinary course of business; and
(kl) a purchase sales, leases or other dispositions of a substantial portion inventory of Holdings and its Subsidiaries determined by the management of Holdings or the Borrower to be no longer useful or necessary in the operation of the assets business of TRW Koyo Steering Systems Company made on Holdings or prior to the 12-month anniversary any of the Closing Date Subsidiaries; provided that the Net Proceeds thereof are applied in an aggregate amount not to exceed the Koyo JV Purchase Amount at the time of such acquisitionaccordance with Section 2.11(c). Notwithstanding anything to the contrary contained in Section 6.05 above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate 210 Holdingsthe Borrower free and clear of any Liens other than Liens created by the Security Documents, (ii) Intermediate Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower[intentionally omitted], (iii) each Foreign Subsidiary Borrower and Xxxxx shall be a Wholly Owned Subsidiary[intentionally omitted], (iv) [intentionally omitted], (v) 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) thereofhereof and purchases, sales or transfers pursuant to paragraph (f) hereof) unless such disposition is for fair market value and value, (vvi) no sale, transfer or other disposition of assets shall be permitted by paragraphs paragraph (a), (d) or (1) of this 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 for purposes of clauses (v) and (vi), the amount of any secured Indebtedness or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on Holdings' or such Subsidiary's most recent balance sheet or in the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the transferee of any such assets shall be deemed 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) 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 Intermediate Holdings, the U.S. Borrower or any Subsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(i) the purchase and sale of inventory in the ordinary course of business by the U.S. Borrower or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the U.S. Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary into a Borrower in a transaction in which such Borrower is the surviving corporation, (ii) the merger or consolidation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than a Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution of any Subsidiary (other than a Borrower) if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) investments expressly permitted by Section 6.04;
(f) the purchase and purchase, sale or other transfer of accounts receivable and related assets pursuant to the Permitted Receivables Financing;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; 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) shall not exceed, in any fiscal year of the U.S. Borrower, 10% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(i) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary;; and
(j) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a Subsidiary in the ordinary course of business; and
(k) a purchase of a substantial portion of the assets of TRW Koyo Steering Systems Company made on or prior to the 12-month anniversary of the Closing Date in an aggregate amount not to exceed the Koyo JV Purchase Amount at the time of such acquisition. Notwithstanding anything to the contrary contained above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate 210 Holdings, (ii) Intermediate Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, (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) thereof) unless such disposition is for fair market value and value, (v) no sale, transfer or other disposition of assets shall be permitted by paragraphs (a), ) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (vi) no sale, transfer or other disposition of assets in excess of $10,000,000 shall be permitted by paragraph (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided, however, that for purposes of clauses (v) and (vi) of this sentence, the assumption by the transferee of liabilities associated with the assets subject to any sale, transfer or other disposition shall not be deemed to be consideration paid in respect of such assets.
Appears in 1 contract
Mergers, Consolidations, Sales. of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of Intermediate Holdings, the U.S. Borrower or any Subsidiary or preferred equity interests of Holdings, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(i) the purchase and sale of inventory in the ordinary course of business by the U.S. Borrower or any Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the U.S. Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing, (i) the merger of any Subsidiary into a Borrower in a transaction in which such Borrower is the surviving corporation, (ii) the merger or consolidation of any Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if any party to such merger or consolidation shall be a domestic Subsidiary) and, in the case of each of clauses (i) and (ii), no person other than a Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or dissolution of any Subsidiary (other than a Borrower) if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S. Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) investments expressly permitted by Section 6.04;
(f) the purchase and sale of accounts receivable and related assets pursuant to the Permitted Receivables Financing;
(g) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(h) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; 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) shall not exceed, in any fiscal year of the U.S. Borrower, 10% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(i) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(j) licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a Subsidiary in the ordinary course of business; and
(k) a purchase of a substantial portion of the assets of TRW Koyo Steering Systems Company made on or prior to the 12-month anniversary of the Closing Date in an aggregate amount not to exceed the Koyo JV Purchase Amount at the time of such acquisition. Notwithstanding anything to the contrary contained above, (i) Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate 210 Holdings, (ii) Intermediate Holdings shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, (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) thereof) unless such disposition is for fair market value and (v) no sale, transfer or other disposition of assets shall be permitted by paragraphs (a), (d) or (h) of this Section 6.05 unless such disposition is for at least 75% cash consideration.156
Appears in 1 contract
