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 any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit: (a) the purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) 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 of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor; (c) Sale and Lease-Back Transactions permitted by Section 6.03; (d) investments permitted by Section 6.04; (e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate; (f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c); (g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c); (h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries; (i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year); (j) the Transaction; (k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction; (l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof; (m) the IPO Reorganization; and (n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization).
Appears in 2 contracts
Samples: Credit Agreement (Graham Packaging Holdings Co), Credit Agreement (Graham Packaging Holdings Co)
Mergers, Consolidations. Sales of Assets and Acquisitions. .
(a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or liquidate or dissolve, or sell, transfer, lease lease, issue or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its substantially all the assets (whether now owned or hereafter acquired), ) of any Loan Party or any of the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
for (ai) the purchase and sale by the Borrowers or any Subsidiary of inventory in the ordinary course of business business, (ii) the sale or discount by the Borrower Borrowers or any Subsidiary in each case without recourse and in the ordinary course of the Borrower or the acquisition business of any other asset (excluding assets constituting investments of the type subject to Section 6.04) overdue accounts receivable arising in the ordinary course of business;
, but only in connection with the compromise or collection thereof consistent with customary industry practice (band not as part of any bulk sale or financing transaction), and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (i) the merger of any Subsidiary of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (iix) the merger or consolidation of any wholly owned Subsidiary into or with a Borrower in a transaction in which a Borrower is the surviving corporation, (y) the merger or consolidation of the Borrower any wholly owned Subsidiary into or with any other 90% wholly owned Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% wholly owned Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person other than the a Borrower or a 90% wholly owned Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;consideration.
(cb) Engage in any Asset Sale (other than the transaction described in that certain Letter of Intent, dated November 24, 2004, between K.D. Investments LLC and Lease-Back Transactions permitted by Section 6.03;
(dPALCO) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers unless (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrowersuch Asset Sale is for cash consideration, (ii) from any Foreign Subsidiary of the Borrower such consideration is at least equal to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property the assets being sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property soldtransferred, leased or disposed in any fiscal year is less than $20,000,000, the amount of and (iii) no Event of Default shall exist at such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)time.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Maxxam Inc), Term Loan Agreement (Maxxam 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 any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:.
(a) JCPenney shall not xxxxxxx-date with or merge into any other ------------- corporation or convey or transfer its properties and assets substantially as an entirety to any person, unless:
(i) the purchase corporation formed by such consolidation or into which JCPenney is merged or the person which acquires by conveyance or transfer the properties and sale assets of inventory in JCPenney substantially as an entirety shall be a corporation organized and existing under the ordinary course laws of business by the Borrower United States of America or any Subsidiary State or the District of Columbia, and shall expressly assume, by an instrument in writing (delivered to the Lenders) the due and punctual payment of the Borrower or principal and interest, if any, on all the acquisition Loans and all other amounts payable by JCPenney under this Agreement and all the rights, interests and other obligations of any other asset (excluding assets constituting investments of the type subject to Section 6.04) in the ordinary course of businessJCPenney under this Agreement;
(bii) if at the time thereof and immediately after giving effect thereto to such transaction, (x) the representations and warranties set forth in Article III shall be true and correct in all material respects on the date of such transaction with the same effect as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date and (y) no Event of Default or Default shall have occurred and be continuing continuing; and
(iii) JCPenney shall have delivered an Officer's Certificate stating that such consolidation, merger, conveyance or transfer and such written instrument comply with this Section 6.04(a).
(b) Funding shall not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any person, except that Funding may merge into JCPenney or a direct or indirect wholly-owned Subsidiary of JCPenney subject to the satisfaction of the following conditions:
(i) the merger corporation formed by such consolidation or into which Funding is merged or the person which acquires by conveyance or transfer the properties and assets of any Subsidiary Funding substantially as an entirety shall expressly assume, by an instrument in writing (delivered to the Lenders) the due and punctual payment of the Borrower into principal and interest, if any, on all the Borrower in a transaction in which Loans and all other amounts payable by Funding under this Agreement and all the Borrower is the surviving corporation rights, interests and other obligations of Funding under this Agreement;
(ii) immediately after giving effect to such transaction, (x) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower representations and warranties set forth in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which Article III shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) true and correct in the case of each of clauses (i) and (ii), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of material respects on the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection such transaction with the sale same effect as if made on and as of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided furthersuch date, that except to the extent that the net book value such representations and warranties expressly relate to an earlier date and (y) no Event of such property sold, leased Default or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may Default shall have occurred and be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganizationcontinuing; and
(niii) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained aboveFunding shall have delivered an Officer's Certificate stating that such consolidation, Holdings must at all times ownmerger, directly conveyance or indirectly, 100% of the Equity Interests of the Borrower transfer and Opco GP (except to the extent Opco GP is liquidated or consolidated such written instrument comply with Holdings in connection with or in contemplation of the IPO Reorganizationthis Section 6.04(b).
Appears in 1 contract
Samples: Revolving Credit Agreement (Penney J C Funding Corp)
Mergers, Consolidations. Sales of Assets and Acquisitions. Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets (whether now owned or hereafter acquired), or any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of, or any division or line of business of, any other personPerson, except that this Section 10.5 shall not prohibit:;
(a) the purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) facilities and equipment in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing
(i) the merger of any Subsidiary of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) Person, or the merger or consolidation of any Subsidiary of the Borrower with and into or with any other 90% Subsidiary of the Borrower Wholly-Owned domestic Subsidiary, in each case in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person Person other than the Borrower or a 90% Subsidiary receives any consideration; and
(ii) the merger of any other Person with and into the Borrower or a Subsidiary if the Borrower or such Subsidiary is the surviving entity and after giving effect to such transaction (A) the Consolidated Net Worth of the Borrower receives any consideration and its Subsidiaries shall be not less than the Consolidated Net Worth of the Borrower and its Subsidiaries immediately prior to such transaction, (B) substantially all the assets and business of the Borrower and its Subsidiaries shall be located in the case United States and (C) the Borrower and its Subsidiaries shall be in compliance, on a pro forma basis after giving effect to such transaction, with the covenants contained in Article IX recomputed as of clause (ii)the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries as if such transaction had occurred on the first day of each relevant period for testing such compliance, if any non-surviving person was a Guarantor and the surviving person must be a GuarantorBorrower shall have delivered to the Administrative Agent an Officer's Compliance Certificate to such effect, together with all relevant financial information and calculations demonstrating such compliance;
(c) Sale Permitted Business Acquisitions and Lease-Back Transactions other investments permitted by Section 6.0310.4;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other real property of the Borrower or its Subsidiaries determined by the general partner Board of Supervisors of the Borrower or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(ie) sales, leases or other dispositions of property having a net book value not in excess for consideration
(i) at least 80% of $20,000,000 in any fiscal yearwhich consists of cash and the remainder of which consists of investments permitted under Section 10.4, provided that or
(ii) consisting of cash and one or more Permitted Business Acquisitions which the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year Board of the date of receipt thereof to purchase assets useful in the business Supervisors of the Borrower shall have determined, as evidenced by a resolution thereof, have in the aggregate a fair market value not less than the fair market value of the property being sold, leased or otherwise disposed of; provided that (A) no issuance of the Capital Stock (or of any warrant, right or option to purchase or otherwise acquire any such Capital Stock or any security convertible into or exchangeable for any such Capital Stock) of any Subsidiary may be made to any Person other than the Borrower or a Wholly-Owned domestic Subsidiary except for the purpose of qualifying directors or in satisfaction of pre-emptive rights of holders of minority interests which are triggered by an issuance of Capital Stock to the Borrower or any Wholly-Owned domestic Subsidiary and its Subsidiaries, provided further, that (B) no sale may be made pursuant to this paragraph (i) of the Equity Interests Capital Stock (or of any warrant, right or option to purchase or otherwise acquire any such Capital Stock or any security convertible into or exchangeable for any such Capital Stock) of any Subsidiary except in connection with a sale, transfer or other disposition in which (1) simultaneously with such sale, transfer or disposition, all the sale Capital Stock and Indebtedness of all its outstanding Equity Interests that are held such Subsidiary at the time owned by the Borrower and any other Subsidiary and provided furthershall be sold, that to transferred or disposed of as an entirety; (2) in the extent that the net book case of any such transaction involving value of such property sold, leased $1,000,000 or disposed in any fiscal year is less than $20,000,000more, the amount Board of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests Supervisors of the Borrower shall have determined, as evidenced by a resolution thereof, that the proposed sale, transfer or disposition of such Capital Stock and Opco GP (except to Indebtedness is in the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation best interests of the IPO Reorganization).Borrower; (3) such Capital Stock and Indebtedness are sold, transferred or otherwise disposed of to a Person for cash or other consideration that would constitute an investment permitted under Section 10.4 and, in the case of any such transaction involving value of $1,000,000 or more, on terms reasonably determined by the Board of Supervisors of the Borrower to be adequate and satisfactory;
Appears in 1 contract
Mergers, Consolidations. Sales of Assets and -------------------------------------------- Acquisitions. Merge The Company will not, and will not permit its Material ------------ Subsidiaries to, merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease assign, lease, sublease, or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets any asset (whether now owned or hereafter acquired), ) or any Equity Interests capital stock of any Subsidiary, or and the Company will not, and will not permit any Subsidiary to, purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part (to the extent such assets constitute one or more distinct business units or operations) of the assets of any other personPerson, except that this Section shall not prohibitthat:
(a) the purchase Company or a Material Subsidiary may acquire another corporation by merger, provided that, if the Company is a party to such merger, the Company is the surviving corporation, and sale provided further that after giving effect to such merger, no Event of inventory in the ordinary course Default or Unmatured Event of business by the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) in the ordinary course of businessDefault shall exist;
(b) if at any Material Subsidiary may merge or consolidate with or into, or sell or otherwise dispose of any or all of its assets to, the time thereof Company or another Subsidiary, and immediately any Material Subsidiary that is not a Borrowing Subsidiary may sell all or substantially all of its assets; provided that (i) after giving effect thereto to such merger, consolidation, sale or other disposition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing (i) the merger of any Subsidiary of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation exist, and (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each an asset sale by such a Material Subsidiary, the assets to be sold do not constitute a material amount of clauses the assets of the Company and its Subsidiaries, taken as a whole; and
(c) the Company or any Subsidiary may acquire the assets or equity securities of any Person (an "Acquisition"), so long as:
(i) and such Acquisition has been approved by the board of directors (or equivalent) or shareholders (or equivalent) of such Person;
(ii)) such assets are used in, no person other than or the Borrower Person acquired is in, the same business as the Company or such Subsidiary or a 90% Subsidiary related line of business; and
(iii) if the Borrower receives any consideration purchase price (including all cash paid, notes issued and indebtedness assumed in connection therewith) of such Acquisition is over $5,000,000, the Company has delivered to the Administrative Agent, at least ten (10) Business Days before the closing of such Acquisition, (A) historical or pro forma financial statements for such Person for its last two fiscal years, if available, and (B) financial projections for the Company and its Consolidated Subsidiaries, giving effect to such Acquisition, covering the period from the date of such Acquisition through the Termination Date then in effect; provided, that neither the Company nor any Subsidiary shall make -------- any Acquisition if (x) the purchase price (including all cash paid, notes issued and indebtedness assumed in connection therewith) of such Acquisition is over $5,000,000 or (y) the sum of the purchase price (as so determined) of such Acquisition and the aggregate purchase prices (as so determined) of all other Acquisitions made by the Company or any Subsidiary after December 31, 1997, would exceed $5,000,000, unless, in the case of clause (iix) or (y), if any non-surviving person was such Acquisition is approved in writing by the Majority Banks, which approval shall not be unreasonably withheld or delayed. For purposes of this Section 5.05, "a Guarantor the surviving person must be a Guarantor;
material amount" of assets shall ------------ mean assets (cA) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases constituting 10% or transfers (i) from the Borrower or any Subsidiary more of the Borrower to the Borrower or to a domestic 90% Subsidiary consolidated assets of the BorrowerCompany and its Consolidated Subsidiaries, or (iiB) from any Foreign Subsidiary generating 10% or more of the Borrower to any Wholly Owned Subsidiary consolidated revenue of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower Company and its Consolidated Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year."
(ii) Section 5.12 is amended in its entirety to read as follows: "The Company will, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year as of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such a fiscal year);
(j) the Transaction;
(k) the sale quarter, maintain a Fixed Charge Coverage Ratio of defaulted receivables not less than, in the ordinary course case of business and not as part of an accounts receivables financing transaction;
(l) saleseach fiscal quarter ending on or before September 30, leases or other dispositions 1997, 2 to 1; in the case of the Subject Property pursuant fiscal quarter ending December 31, 1997, 1.75 to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization1; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% case of the Equity Interests fiscal quarter ending March 31, 1998, 1.65 to 1; in the case of the Borrower and Opco GP (except fiscal quarter ending June 30, 1998, 1.5 to 1; in the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation case of the IPO Reorganization)fiscal quarter ending September 30, 1998, 1.75 to 1; and in the case of each fiscal quarter ending on or after December 31, 1998, 2 to 1."
Appears in 1 contract
Samples: Credit Agreement (Donnelley Enterprise Solutions 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 substantial part of its assets (whether now owned or hereafter acquired), or any Equity Interests Capital Stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) the purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) any person 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 of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Wholly Owned Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% Wholly Owned Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person other than the Borrower or a 90% Wholly Owned Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.036.03 (including sales of Manufacturing Equipment or other equipment to Lessors in connection with Permitted Lease Financings or Additional Lease Financings);
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Wholly Owned Subsidiary of the Borrower, or (ii) from any Foreign foreign Subsidiary of the Borrower to any foreign Wholly Owned Subsidiary of the Borrower or to the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other real property of the Borrower or its the Subsidiaries determined by the general partner Board of Directors or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its the Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its the Subsidiaries not made in the ordinary course of business determined by the general partner Board of Directors or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its the Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) sales and other dispositions by the Borrower and the Subsidiaries of accounts receivable and related assets to the Receivables Subsidiary pursuant to any Permitted Receivables Financing;
(i) the sale of any Equity Interests Capital Stock of any Subsidiary of the Borrower in which less than 90% of the Equity Interests Capital Stock is owned by the Borrower or a domestic Wholly Owned Subsidiary and its Subsidiariesthat was acquired pursuant to Section 6.04(k) or (l);
(ij) AAMM and the Borrower may effect the IPO Merger and the initial public offering of common stock by the surviving corporation in the IPO Merger, so long as the IPO Merger and the release of the pledge to the Collateral Agent of the common stock of the Borrower held by AAMM immediately prior to the IPO Merger shall have received the prior written approval of the Required Lenders;
(k) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its the Subsidiaries, and provided further, further that no sale may be made pursuant to this paragraph (i) of the Equity Interests Capital Stock of any Subsidiary except in connection with the sale of all its outstanding Equity Interests Capital Stock that are is held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;Subsidiary; and
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)Recapitalization.
Appears in 1 contract
Samples: Credit Agreement (American Axle & Manufacturing Holdings Inc)
Mergers, Consolidations. Acquisitions and Sales of Assets and Acquisitions. Merge -------------------------------------------------- Assets.
(a) The Borrower will not, nor will it permit any of its 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) all or any part of its assets (whether now owned or hereafter acquired), or any Equity Interests of any Subsidiary, or purchase, lease purchase or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part of the assets of any other personmaterial assets, except that this Section (i) the foregoing shall not prohibit:
prohibit the consummation of the Acquisition, (aii) the purchase and sale foregoing shall not prohibit the acquisition of inventory assets in the ordinary course of business (including Capital Expenditures permitted by Section 5.24), (iii) the foregoing shall not prohibit Permitted Acquisitions, subject to 30 days' prior written notice to the Lenders of such Permitted Acquisition describing the material terms of such Permitted Acquisition and delivery to the Lenders prior to consummation of such Permitted Acquisition of a certificate of the chief financial officer or the chief accounting officer of the Borrower, setting forth calculations establishing to the reasonable satisfaction of the Agent that the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset will be in compliance with Section 5.23 upon giving effect to such Permitted Acquisition, (excluding assets constituting investments of the type subject to Section 6.04) in the ordinary course of business;
(biv) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing any Wholly Owned Consolidated Subsidiary (iother than Finance Corp.) the merger of any Subsidiary of the Borrower may merge or liquidate into the Borrower in a transaction in which the Borrower is the surviving corporation survivor and (iiv) the merger or consolidation of any Subsidiary of foregoing shall not prohibit capital contributions to the Borrower into made in cash or with any other 90% Subsidiary of Investments by the Borrower in a transaction Subsidiaries permitted under Section 5.16; provided that the acquisition of assets by Subsidiaries shall be subject to the -------- further restrictions set forth in which Section 5.04.
(b) The Borrower will not, nor will it permit any of its Subsidiaries to, sell, assign, transfer or otherwise dispose of any asset, including any stock, without the surviving entity is a 90% Subsidiary prior written consent of the Borrower (which Required Lenders to such sale, assignment, transfer or disposition and the terms thereof; provided, however, -------- ------- that the foregoing shall be a domestic Subsidiary if not prohibit the non-surviving person shall be a domestic Subsidiary) and, (A) in the case sale of each of clauses (i) and (ii), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything , (ii) used or surplus equipment in the ordinary course of business, (iii) credit card receivables pursuant to the contrary contained aboveCredit Card Agreements, Holdings must at all times own, directly or indirectly, 100% and (iv) other tangible personal property and real property not exceeding $3,000,000 in fair market value in any fiscal year of the Equity Interests of the Borrower Borrower; provided -------- further, however, that such sales shall be made for fair market value and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)solely ------- ------- for cash consideration.
Appears in 1 contract
Samples: Credit Agreement (Brylane Inc)
Mergers, Consolidations. Acquisitions and Sales of Assets and Acquisitions. Merge --------------------------------------------------- Assets.
(a) The Borrower will not, nor will it permit any of its 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) all or any part of its assets (whether now owned or hereafter acquired), or any Equity Interests of any Subsidiary, or purchase, lease purchase or otherwise acquire (in one transaction or a series of related transactions) all or any substantial part of the assets of any other personmaterial assets, except that this Section (i) the foregoing shall not prohibit:
prohibit the consummation of the Acquisition, (aii) the purchase and sale foregoing shall not prohibit the acquisition of inventory assets in the ordinary course of business (including Capital Expenditures permitted by Section 5.24), (iii) the foregoing shall not prohibit Permitted Acquisitions, subject to 30 days' prior written notice to the Lenders of such Permitted Acquisition describing the material terms of such Acquisition and delivery to the Lenders prior to consummation of such Permitted Acquisition of a certificate of the chief financial officer or the chief accounting officer of the Borrower, setting forth calculations establishing to the reasonable satisfaction of the Agent that the Borrower or any Subsidiary of will be in compliance with Section 5.23 upon giving effect to such Permitted Acquisition, (iv) the Borrower or the acquisition of any other asset foregoing shall not prohibit a Conversion in accordance with Article IX, (excluding assets constituting investments of the type subject to Section 6.04) in the ordinary course of business;
(bv) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing any Wholly Owned Consolidated Subsidiary (iother than Finance Corp.) the merger of any Subsidiary of the Borrower may merge or liquidate into the Borrower in a transaction in which the Borrower is the surviving corporation survivor and (iivi) the merger or consolidation of any Subsidiary of foregoing shall not prohibit capital contributions to the Borrower into made in cash or with any other 90% Subsidiary of Investments by the Borrower in a transaction Subsidiaries permitted under Section 5.16; provided that the acquisition of assets by Subsidiaries -------- shall be subject to the further restrictions set forth in which Section 5.04.
(b) The Borrower will not, nor will it permit any of its Subsidiaries to, sell, assign, transfer or otherwise dispose of any asset, including any stock, without the surviving entity is a 90% Subsidiary prior written consent of the Borrower (which Required Lenders to such sale, assignment, transfer or disposition and the terms thereof; provided, however, -------- ------- that the foregoing shall be a domestic Subsidiary if not prohibit the non-surviving person shall be a domestic Subsidiary) and, (A) in the case sale of each of clauses (i) and (ii), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything , (ii) used or surplus equipment in the ordinary course of business, (iii) credit card receivables pursuant to the contrary contained aboveCredit Card Agreements, Holdings must at all times own, directly or indirectly, 100% and (iv) other tangible personal property and real property not exceeding $3,000,000 in fair market value in any fiscal year of the Equity Interests of the Borrower Borrower; provided -------- further, however, that such sales shall be made for fair market value and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)solely ------- ------- for cash consideration.
Appears in 1 contract
Samples: Credit Agreement (Brylane Inc)
Mergers, Consolidations. Sales of Assets and Acquisitions. Merge Acquisition.Without the prior written consent of the Administrative Agent, the Parent and the Company will not, and will ensure that none of their Subsidiaries will merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets (whether now owned or hereafter acquired), ) or any Equity Interests capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson (each, an "Acquisition"), except that this Section shall not prohibit:
(a) the Company and any Subsidiary (other than WP) may purchase and sale of sell inventory in the ordinary course of business by the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) in the ordinary course of business;
, and (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 Wholly Owned Subsidiary of the Borrower (other than WP) may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving corporation and (ii) the merger or consolidation of any Wholly Owned Subsidiary of the Borrower (other than WP) may merge into or consolidate with any other 90% wholly owned Subsidiary of the Borrower (other than WP) in a transaction in which the surviving entity is a 90% wholly owned Subsidiary and no Person other than the Company or a wholly owned Subsidiary receives any consideration; (c) the Company of the Borrower any of its Subsidiaries (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiaryother than WP) and, (A) in the case of each of clauses may consummate an Acquisition provided that (i) no Default or Event of Default shall, either before or after giving effect thereto, have occurred and be continuing and (ii), no person ) the aggregate consideration (in whatever form) for all Acquisitions (other than the Borrower or a 90% Subsidiary of Enertel Acquisition) consummated since the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) date hereof shall not exceed $20,000,000 in the aggregate;
2,500,000; (f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(hd) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90Minority Shareholders may purchase 20% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year capital stock of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property Dutch Holding Company pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything Minority Shareholder Agreement and otherwise pursuant to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% terms of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)this Agreement.
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 the Term 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:
(ai) the purchase and sale of inventory in the ordinary course of business by the Borrower Holdings or any Subsidiary of the Borrower or Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by Holdings or any Subsidiary, (excluding assets constituting investments iii) the sale of surplus, obsolete or worn out equipment or other property in the type subject to Section 6.04ordinary course of business by Holdings or any Subsidiary, (iv) leases and subleases in the ordinary course of business by Holdings or any Subsidiary or (v) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (i) the merger of any Subsidiary of the Borrower into the a Borrower in a transaction in which the such Borrower is the surviving corporation and corporation, (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower Loan Party in a transaction in which the surviving or resulting entity is a 90% Subsidiary of the Borrower Loan Party (which shall be a domestic Domestic Subsidiary Loan Party if the non-surviving person any party to such merger or consolidation shall be a domestic Domestic Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person other than the a Borrower or a 90% Subsidiary of the Borrower Loan Party receives any consideration and consideration, (Biii) 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 Borrower) if Holdings determines in good faith that such liquidation or dissolution is in the case best interests of clause (ii), if any non-surviving person was a Guarantor Holdings and is not materially disadvantageous to the surviving person must be a GuarantorLenders;
(c) sales, transfers, 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 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 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, 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(de) investments Investments permitted by Section 6.04;
(e) subject to , Liens permitted by Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate6.02 and Dividends permitted by Section 6.06;
(f) sales, leases the purchase and sale or other dispositions transfer (including by capital contribution) of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower Receivables Assets pursuant to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c)Permitted Receivables Financings;
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) 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, issuances (to the extent of all of the Equity Interests in a Person then owned by Holdings and its Subsidiaries) or other dispositions not otherwise permitted by this Section 6.05; provided that 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) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of Holdings, 5% of Consolidated Total Assets as of the end of the immediately preceding fiscal year; provided, further, that the Net Proceeds thereof are applied in accordance with Section 2.11(c);
(i) any merger or consolidation in connection with a Permitted Business Acquisition, provided that following any such merger or consolidation (i) involving a Borrower, such Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Domestic Subsidiary Loan Party that is a Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Foreign Subsidiary Loan Party that is a Wholly Owned Subsidiary;
(j) any transactions pursuant to the Restructuring;
(k) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Term Borrower or any Subsidiary in the ordinary course of business;
(l) any merger of Bidco and the Company, of Bidco and GP GmbH, of Midco and LP GmbH, of Midco and GP GmbH, or of Bidco and Midco;
(m) sales, leases or other dispositions of inventory of Holdings and its Subsidiaries determined by the Subject Property pursuant management of Holdings or the Term Borrower to be no longer useful or necessary in the Xxxxxx County Bond Transactions consummated operation of the business of Holdings or any of the Subsidiaries; provided that the Net Proceeds thereof are applied in accordance with the definition thereofSection 2.11(c);
(mn) the IPO Reorganizationsale of the performance products business of Nutrinova; provided that the Net Proceeds of such sale are applied in accordance with Section 2.11(c); and
(no) licenses of intellectual property in the ordinary course of businessCAMI Sale. Notwithstanding anything to the contrary contained in Section 6.05 above, Holdings must (i) no action shall be permitted which results in a Change of Control under clause (a) of the definition thereof, (ii) the Term Borrower shall at all times ownafter the Restructuring Date own directly (or to the extent all direct and indirect owners of the Equity Interests of CAC (other than US Holdco) are Domestic Subsidiary Loan Parties, directly or 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 (other than pursuant to the Restructuring), (iv) each Foreign Subsidiary that is a Revolving Borrower shall be a Wholly Owned Subsidiary, (v) no sale, transfer, lease, issuance or other disposition shall be permitted by this Section 6.05 (other than sales, transfers, leases, issuances or other dispositions to Loan Parties pursuant to paragraph (c) hereof and Opco GP purchases, sales or transfers pursuant to paragraph (except f) or (to the extent Opco GP made to Holdings or a Wholly Owned Subsidiary) (j) hereof) unless such disposition is liquidated for fair market value, (vi) no sale, transfer or consolidated with Holdings other disposition of assets shall be permitted by paragraph (a), (d) or (m) 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 connection with 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 (vi) and (vii), 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 contemplation the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the IPO Reorganization)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 any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:.
(a) JCPenney shall not xxxxxxx- ------------- date with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any person, unless:
(i) the purchase corporation formed by such consolidation or into which JCPenney is merged or the person which acquires by conveyance or transfer the properties and sale assets of inventory in JCPenney substantially as an entirety shall be a corporation organized and existing under the ordinary course laws of business by the Borrower United States of America or any Subsidiary State or the District of Columbia, and shall expressly assume, by an instrument in writing (delivered to the Lenders) the due and punctual payment of the Borrower or principal and interest, if any, on all the acquisition Loans and all other amounts payable by JCPenney under this Agreement and all the rights, interests and other obligations of any other asset (excluding assets constituting investments of the type subject to Section 6.04) in the ordinary course of businessJCPenney under this Agreement;
(bii) if at the time thereof and immediately after giving effect thereto to such transaction, (x) the representations and warranties set forth in Article III shall be true and correct in all material respects on the date of such transaction with the same effect as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date and (y) no Event of Default or Default shall have occurred and be continuing continuing; and
(iii) JCPenney shall have delivered an Officer's Certificate stating that such consolidation, merger, conveyance or transfer and such written instrument comply with this Section 6.04(a).
(b) Funding shall not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any person, except that Funding may merge into JCPenney or a direct or indirect wholly-owned Subsidiary of JCPenney subject to the satisfaction of the following conditions:
(i) the merger corporation formed by such consolidation or into which Funding is merged or the person which acquires by conveyance or transfer the properties and assets of any Subsidiary Funding substantially as an entirety shall expressly assume, by an instrument in writing (delivered to the Lenders) the due and punctual payment of the Borrower into principal and interest, if any, on all the Borrower in a transaction in which Loans and all other amounts payable by Funding under this Agreement and all the Borrower is the surviving corporation rights, interests and other obligations of Funding under this Agreement;
(ii) immediately after giving effect to such transaction, (x) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower representations and warranties set forth in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which Article III shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) true and correct in the case of each of clauses (i) and (ii), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of material respects on the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection such transaction with the sale same effect as if made on and as of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided furthersuch date, that except to the extent that the net book value such representations and warranties expressly relate to an earlier date and (y) no Event of such property sold, leased Default or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may Default shall have occurred and be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganizationcontinuing; and
(niii) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained aboveFunding shall have delivered an Officer's Certificate stating that such consolidation, Holdings must at all times ownmerger, directly conveyance or indirectly, 100% of the Equity Interests of the Borrower transfer and Opco GP (except to the extent Opco GP is liquidated or consolidated such written instrument comply with Holdings in connection with or in contemplation of the IPO Reorganizationthis Section 6.04(b).
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Penney J C Funding Corp)
Mergers, Consolidations. Sales of Assets and Acquisitions. Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets (whether now owned or hereafter acquired), ) or any Equity Interests capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personperson (including by means of a merger or consolidation in which the surviving person is the Borrower or a Wholly Owned Subsidiary), except that this Section shall not prohibit:
(a) the Borrower and any of the Subsidiaries may purchase and sale of sell inventory in the ordinary course of business by business, (b) the Borrower or any Subsidiary of the Subsidiaries may purchase brand name pharmaceutical product lines from any third party pursuant to clause (iii) of the proviso contained in the definition of "Asset Sale" in Section 1.01 pursuant to the conditions set forth therein, (c) if (i) at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing and (ii) the Borrower shall have delivered to the Administrative Agent calculations demonstrating pro forma compliance with the covenants contained in Sections 6.10, 6.11, 6.12 and 6.13 as of the end of and for the most recent period of four fiscal quarters for which financial statements shall have been delivered pursuant to Section 5.03(a) or (b), giving effect to such acquisition and the incurrence of any related Indebtedness as if they had occurred at the beginning of such period, the Borrower or any of the Subsidiaries may acquire all or any substantial part of the assets of any other person (including by means of a merger or consolidation in which the surviving person is the Borrower or a Wholly Owned Subsidiary) if the consideration paid in such acquisition consists solely of (A) common stock of the Borrower, or proceeds of the issuance of common stock of the Borrower remaining after the prepayments required under Section 2.13(d) have been made or (B) cash in an amount equal to proceeds of Indebtedness permitted under Section 6.01(d) remaining after the acquisition of any other asset prepayments required under Section 2.13(g) have been made (excluding assets constituting investments of the type subject to Section 6.04) but only, in the ordinary course case of business;
either of clause (bA) or clause (B), if such proceeds were received within 12 months prior to such acquisition) and (d) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) the merger of any Wholly Owned Subsidiary of the Borrower may merge into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any Wholly Owned Subsidiary of the Borrower may merge into or consolidate with any other 90% Wholly Owned Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% Wholly Owned Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from receives any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)consideration.
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 any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibit:
(a) the purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) 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 of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, Borrower or (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property (including intellectual property) of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries; provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(i) sales, leases or other dispositions of property having a net book value not otherwise permitted by this Section 6.05; provided that the aggregate gross proceeds (including non-cash proceeds) of any and all property sold, transferred, leased or otherwise disposed of in excess of $20,000,000 reliance on this clause (i) shall not exceed, in any fiscal year of the Borrower, 5% of Consolidated Total Assets as of the immediately preceding fiscal year; provided, provided further that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization).
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 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:
(ai) the purchase and sale of inventory in the ordinary course of business by the U.S. Borrower or any Subsidiary of the Borrower or Subsidiary, (ii) the acquisition of any other asset in the ordinary course of business by the U.S. Borrower or any Subsidiary, (excluding assets constituting investments iii) the sale of surplus, obsolete or worn out equipment or other property in the type subject to Section 6.04ordinary course of business by the U.S. Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (i) the merger of Intermediate Holdings (or the surviving entity of any merger of Intermediate Holdings and Holdings) with the U.S. Borrower, (ii) the merger of Intermediate Holdings (or the surviving entity of any merger of Intermediate Holdings and the U.S. Borrower) with Holdings, (iii) the merger of any Subsidiary of the Borrower into the a Borrower in a transaction in which the such Borrower is the surviving corporation and corporation, (iiiv) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower Loan Party in a transaction in which the surviving or resulting entity is a 90% Subsidiary of the Borrower Loan Party (which shall be a domestic Domestic Subsidiary Loan Party if the non-surviving person any party to such merger or consolidation shall be a domestic Subsidiary) and, (A) in the case of each of clauses (iiii) and (iiiv), no person other than the a Borrower or Subsidiary Loan Party receives any consideration, (v) the merger or consolidation of any Subsidiary that is not a 90% Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party or (vi) the liquidation or dissolution of any Subsidiary (other than a Borrower) if the U.S. Borrower determines in good faith that such liquidation or dissolution is in the best interests of the U.S. Borrower receives any consideration and (B) in is not materially disadvantageous to the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a GuarantorLenders;
(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;
(de) investments expressly permitted by Section 6.04;
(ef) subject to Section 6.07the purchase, sales, leases sale or transfers (i) from the Borrower or any Subsidiary other transfer of the Borrower accounts receivable and related assets pursuant to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c)Permitted Receivables Financing;
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;; 176
(lh) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05 (other than the Subject Property pursuant note evidencing or any right to payment in respect of the Xxxxxx County Bond Transactions consummated in accordance with Intermediate Holdings Loan or the definition thereofXxxxx Loan), provided that such sale does not constitute a sale of all or substantially all the assets of Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries, taken as a whole;
(mi) 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 IPO Reorganizationsurviving 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
(nj) licenses of licensing and cross-licensing arrangements involving any technology or other intellectual property of the U.S. Borrower or a Subsidiary in the ordinary course of business. Notwithstanding anything to the contrary contained above, (i) Holdings must shall at all times own, directly or indirectly, 100% of the Equity Interests of Intermediate Holdings (or the surviving entity in any merger of Intermediate Holdings and the U.S. Borrower pursuant to Section 6.05(b)), unless and until such time as Intermediate Holdings (or such surviving entity) is merged with Holdings pursuant to Section 6.05(b), (ii) Intermediate Holdings (or the surviving entity in any merger of Intermediate Holdings and Holdings pursuant to Section 6.05(b)) shall at all times own, directly or indirectly, 100% of the Equity Interests of the U.S. Borrower, unless and until such time as Intermediate Holdings (or such surviving entity) is merged with the U.S. Borrower pursuant to Section 6.05(b), (iii) each Foreign Subsidiary Borrower and Opco GP Xxxxx shall be a Wholly Owned Subsidiary, (except iv) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (v) no sale, transfer or other disposition of assets shall be permitted by paragraphs (a) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (vi) no sale, transfer or other disposition of assets in excess of $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 clause (vi) of this sentence, (A) the extent Opco GP is liquidated assumption by the transferee of liabilities associated with the assets subject to any sale, transfer or consolidated other disposition shall not be deemed to be consideration paid in respect of such assets and (B) any Designated Non-Cash Consideration received by the U.S. Borrower or any Subsidiary in respect of any such sale, transfer or other disposition (valued at the time of receipt thereof, and without giving effect to any write-downs or write-offs thereof) having an aggregate fair market value, taken together with Holdings in connection with or in contemplation all other Designated Non-Cash Consideration previously applied pursuant to this clause (B) less the Net Proceeds of any subsequent sale of any such Designated Non-Cash Consideration, not to exceed the greater of (x) 2.5% of Consolidated Total Assets as of the IPO Reorganization)end of the fiscal quarter immediately prior the date of such sale, transfer or other disposition for which financial statements have been delivered pursuant to Section 5.04 and (y) $100,000,000, shall be deemed to constitute "cash consideration" received in respect of such sale, transfer or other disposition.
Appears in 1 contract
Mergers, Consolidations. Sales of Assets and Acquisitions. Merge None of the Obligors will, nor will they cause or permit any of its 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 conduct any Asset Sale of (in one transaction or in a series of transactions) all or any substantial part of its assets (whether now owned or hereafter acquired), or any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section shall not prohibitthat:
(a) the purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) 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 wholly owned Subsidiary of the Borrower Allied may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving corporation and corporation; (ii) the merger or consolidation of any Subsidiary of the Borrower Allied may merge into or consolidate with any other 90% Subsidiary of the Borrower Allied in a transaction in which the surviving entity is a 90% wholly owned Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) Allied and (ii), no person Person other than the Borrower Company or a 90% wholly owned Subsidiary of the Borrower Allied receives any consideration consideration; and (Biii) in connection with one or more Permitted Acquisitions, the case Company or any of clause its Subsidiaries may merge with or into another Person to the extent permitted under Section 6.05(m)(3)(y) (iiprovided that, for all purposes of this paragraph (a), if Reliant Insurance shall not merge into Allied, the Company or any non-surviving person was a Guarantor other Subsidiary of Allied);
(b) any Subsidiary of Allied (other than the surviving person must be a GuarantorCompany) may change the jurisdiction in which it is incorporated so long as the new jurisdiction is in the United States;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;the Company or any of its Subsidiaries (other than Reliant Insurance) may make Permitted Acquisitions; and
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower Company or any Subsidiary of the Borrower to the Borrower or to its Subsidiaries may conduct an Asset Sale of a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrowertype not described in this Section 6.06, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv1) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Available Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower manner and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that required under Section 2.05(b) and (2) any Asset Sale of assets or stock having a fair market value in excess of 2% of Total Assets shall not be permitted without the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions prior consent of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)Required Lenders.
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) 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 Borrower or any SubsidiarySubsidiary Guarantor or other Restricted Subsidiary of 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 or, except as permitted by Section 10.1.8(a), liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), except that this Section shall not prohibit:
: (a) (i) the purchase and sale of inventory inventory, supplies, materials and equipment and the purchase and sale of rights or licenses or leases of Intellectual Property, in each case in the ordinary course of business by the Borrower or any Subsidiary of its Restricted Subsidiaries, (ii) the Borrower or the acquisition sale of any other asset in the ordinary course of business by Borrower or any Restricted Subsidiary, (excluding assets constituting investments iii) the sale of surplus, obsolete or worn out equipment or other property in the type subject to Section 6.04ordinary course of business by Borrower or any of its Restricted Subsidiaries or (iv) the sale of Cash Equivalents in the ordinary course of business;
; provided, that, in the case of each such sale, Borrower shall provide an updated Borrowing Base Report to the extent and within the deadline required by Section 8.1.1; (b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (i) the merger or consolidation of any Restricted Subsidiary of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and entity; provided that, to the extent that such Restricted Subsidiary is a Subsidiary Guarantor, all actions (if any) required, necessary or appropriate to comply with Section 10.1.9 of this Agreement with respect to any Collateral acquired by Borrower from such Restricted Subsidiary shall have been taken on or prior to the consummation of the merger or consolidation to the extent necessary to be taken by such time in order to maintain the Lien under the Security Documents on such Collateral, (ii) the merger or consolidation of any Restricted Subsidiary of the Borrower into or with Borrower or any other 90% Subsidiary of the Borrower Guarantor in a transaction in which the surviving or resulting entity is Borrower or a 90% Subsidiary Guarantor; provided that, to the extent that such Restricted Subsidiary is a Subsidiary Guarantor, all actions (if any) required, necessary or appropriate to comply with Section 10.1.9 of this Agreement with respect to any Collateral acquired by Borrower or any Subsidiary Guarantor from such Restricted Subsidiary shall have been taken on or prior to the consummation of the Borrower merger or consolidation to the extent necessary to be taken by such time in order to maintain the Lien under the Security Documents on such Collateral, (which shall be iii) the merger, amalgamation or consolidation of any Restricted Subsidiary that is not a domestic Subsidiary Guarantor into or with any other Restricted Subsidiary that is not a Subsidiary Guarantor, (iv) the liquidation, winding up or dissolution or change in form of entity of any Restricted Subsidiary if the non-surviving person shall be a domestic Subsidiary) andBorrower determines in good faith that such liquidation, (A) winding up, dissolution or change in form is in the case best interests of each Borrower and is not materially disadvantageous to the Lenders 130 or (v) the change in form of clauses entity of Borrower if Borrower determines in good faith that such change in form is in the best interests of Borrower and is not materially disadvantageous to the Lenders; (c) sales, transfers, leases or other dispositions (i) to Borrower or to a Restricted Subsidiary; provided that, to the extent such acquiring entity is Borrower or a Subsidiary Guarantor, all actions (if any) required, necessary or appropriate to comply with Section 10.1.9 of this Agreement with respect to any Collateral acquired by the acquiring entity shall have been taken on or prior to the consummation of the applicable disposition to the extent necessary to be taken by such time in order to maintain the Lien under the Security Documents on such Collateral and (ii), no person other than the Borrower or a 90% ) to an Unrestricted Subsidiary of the Borrower receives any consideration and (B) in the case of clause (i) or (ii), if upon voluntary liquidation or otherwise); provided, that any non-surviving person was sales, transfers, leases or other dispositions by Borrower or a Guarantor Restricted Subsidiary to an Unrestricted Subsidiary shall be made in compliance with Section 10.2.9; and provided, further, that (A) the surviving person must be aggregate gross proceeds of any sales, transfers, leases or other dispositions by Borrower or a Guarantor;
Restricted Subsidiary to an Unrestricted Subsidiary 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 Borrower, 5.0% of Consolidated Total Assets as of the end of the immediately preceding Fiscal Year and (B) with respect to any disposition pursuant to this paragraph (c)(ii), Borrower shall provide an updated Borrowing Base Report to the extent and within the deadline required by Section 8.1.1; (d) Sale and Lease-Back Transactions permitted by Section 6.03;
10.2.3; (de) investments Investments permitted by Section 6.04;
(e) subject to 10.2.5, Liens permitted by Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
10.2.2 and dividends and distributions permitted by Section 10.2.4; (f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
transaction so long as such receivables are not included in the Borrowing Base; (lg) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 10.2.6; provided, that the Subject Property pursuant aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any Fiscal Year of Borrower, 5.0% of Consolidated Total Assets as of the Xxxxxx County Bond Transactions consummated end of the immediately preceding Fiscal Year; provided, further, that (i) the Net Proceeds thereof are applied in accordance with Section 5.2 and (ii) Borrower shall provide an updated Borrowing Base Report to the definition thereof;
extent and within the deadline required by Section 8.1.1; (mh) any merger or consolidation in connection with a Permitted Business Acquisition or any other acquisition permitted hereby; provided, that following any such merger or consolidation (i) involving Borrower, Borrower is the IPO Reorganizationsurviving entity, (ii) involving a Subsidiary Guarantor (but not Borrower), the surviving or resulting entity shall be a Subsidiary Guarantor and (iii) involving a Restricted Subsidiary (but not Borrower or a Subsidiary Guarantor), the surviving or resulting entity shall be a Restricted Subsidiary; and
provided, further, that Borrower shall provide an updated Borrowing Base Report to the extent and within the deadline required by Section 8.1.1; (ni) licenses licensing and cross-licensing arrangements involving any technology or other Intellectual Property of intellectual property Borrower or any Restricted Subsidiary in the ordinary course of business. Notwithstanding anything to ; and (j) abandonment, cancellation or disposition of any Intellectual Property of Borrower in the contrary contained above, Holdings must at all times own, directly or indirectly, 100% ordinary course of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)business.
Appears in 1 contract
Samples: Loan and Security Agreement (Summit Midstream Partners, LP)
Mergers, Consolidations. Sales of Assets and Acquisitions. Merge into or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate or amalgamate with it, or otherwise sell, transfer, lease or otherwise dispose (including to a Divided LLC pursuant to a Division) of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part substantially all of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:: (a)
(ai) the purchase and sale of inventory in the ordinary course of business by any Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by any Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by any Borrower or any Subsidiary or (iv) the sale of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) Permitted Investments in the ordinary course of business;
; (b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing or would result therefrom, (i) the merger merger, consolidation or amalgamation of any Subsidiary of the with or into any Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower Loan Party in a transaction in which the surviving or resulting entity is such Borrower or, if a 90% Borrower is not a party to such transaction, a Subsidiary Loan Party, and no person other than a Borrower or Subsidiary Loan Party receives any consideration;, (ii) the merger, consolidation or amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with any Subsidiary that is not a Subsidiary Loan Party, 146 (iii) the Borrower (which shall be a domestic liquidation or dissolution or change in form of entity of any Subsidiary if the non-applicable Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of such Borrower and is not materially disadvantageous to the Lenders, (iv) any Subsidiary may merge, consolidate or amalgamate with or into any other person in order to effect an Investment permitted pursuant to Section 7.04 so long as the continuing or surviving person shall be a domestic Subsidiary) and, (A) in which shall be a Loan Party if the case of merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of clauses its Subsidiaries shall have complied with the requirements of Section 6.10, or (iv) the merger, consolidation or amalgamation of any Constellium Holding Company with or into any Borrower or any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is such Borrower or, if a Borrower is not a party to such transaction, a Subsidiary Loan Party, and (ii), no person other than the a Borrower or Subsidiary Loan Party receives any consideration. (c) sales, transfers, leases or other dispositions to a Borrower or a 90% Subsidiary of the Borrower receives (upon voluntary liquidation or otherwise); provided that any consideration and (B) sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
reliance on this paragraph (c) shall be made in compliance with Section 7.07 and the aggregate gross proceeds of any such sales, transfers, leases or other dispositions plus the aggregate fair market value of any or all assets sold, transferred, leased, licensed or otherwise disposed of in reliance on clause (g) below, shall not exceed, in any fiscal year of the Borrowers, $5,000,000; (d) Sale and Lease-Lease Back Transactions permitted by Section 6.03;
7.03; (de) investments Investments permitted by Section 6.04;
(e) subject to 7.04 and Permitted Liens and Restricted Payments permitted by Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
7.06; (f) sales, leases the sale or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale disposition of defaulted receivables and the compromise, settlement and collection of receivables in the ordinary course of business or in bankruptcy or other proceedings concerning the other account party thereon and not as part of an accounts receivables financing transaction;
; (lg) sales, leases transfers, leases, licenses or other dispositions of the Subject Property assets not otherwise permitted by this Section 7.05 (or required to be included in this clause (g) pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
Section 7.05(c)); provided that (mi) the IPO Reorganizationaggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased, licensed or otherwise disposed of in reliance upon this clause (g) shall not exceed, in any fiscal year of the Borrowers, $10,000,000 and (ii) no Default or Event of Default exists or would result therefrom; and
(nh) Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that following any such merger, consolidation or amalgamation (i) involving a Borrower, such Borrower is the surviving corporation or such merger, consolidation or amalgamation shall otherwise satisfy the requirements of subsection (b)(i) above and (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary; (i) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of intellectual any real or personal property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization).;
Appears in 1 contract
Samples: Credit Agreement (Constellium Se)
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 assign, lease, sublease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets (whether now owned or hereafter acquired), ) or any Equity Interests capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson; provided, except however, that this Section the foregoing shall not prohibit:
(a) the purchase sales of Permitted Investments for cash;
(b) sales, transfers and sale other dispositions of inventory used or surplus equipment, vehicles and other assets in the ordinary course of business by (to the extent that the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) 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) complied with the merger provisions of any Subsidiary of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) and (iiSection 2.12), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Leaseback Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04sales of inventory in the ordinary course of business;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any and other dispositions by a Subsidiary of the Borrower to the Borrower or to any other Subsidiary that is a domestic 90% party to the Guarantee Agreement and all applicable Security Documents (which, it is understood, does not include TSM);
(f) the capital contributions described in Section 6.04(g);
(g) the sale or discount without recourse of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof in the ordinary course of business;
(h) the merger of any Subsidiary with the Borrower or any other Subsidiary; provided, however, that (i) at the time of the Borrowerand immediately after giving effect to any such merger no Default or Event of Default shall have occurred, (ii) from any Foreign Subsidiary of the Borrower to shall be the surviving corporation of any Wholly Owned Subsidiary of the Borrower or merger involving the Borrower, (iii) from any no Foreign Subsidiary may merge with a Domestic Subsidiary unless the Domestic Subsidiary shall be the surviving corporation in such merger and (iv) no Subsidiary may merge with another Subsidiary unless the surviving corporation in such merger is a Guarantor; and
(i) other purchases, leases and other acquisitions of all or substantially all the assets of, or all the shares or other equity interests in, a Person or division or line of business ("Acquisitions") for which the aggregate consideration paid or payable by the Borrower and the Subsidiaries since the Closing Date does not exceed $150,000,000 (including for this purpose the aggregate principal amount of Indebtedness that is assumed or acquired in connection with Acquisitions); provided, however, that (i) at the time of and immediately after giving effect to each such Acquisition, no Default or Event of Default shall have occurred and be continuing, (ii) such Acquisition is not the result of an unsolicited tender offer by the Borrower or the Subsidiaries, (iii) after giving effect to such Acquisition, there shall exist at least $10,000,000 in unused Revolving Credit Commitments, (iv) after giving effect to such Acquisition, the Borrower and the Subsidiaries shall be in compliance, on a non-Wholly Owned Subsidiary pro forma basis after giving effect to such Acquisition with the covenants contained in Sections 6.13 and 6.14 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower as if such Acquisition had occurred on the first day of each relevant period for testing such compliance, and (v) prior to the consummation of any such Acquisition for aggregate consideration of at least $15,000,000, the Borrower shall have delivered a certificate of a Responsible Officer of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary the Administrative Agent certifying as to the truth of the Borrower or matters set forth in clauses (i), (ii), (iii) and (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of above and setting forth reasonably detailed calculations with respect to the Borrower matters being certified to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) salesabove; provided further, leases that any single Acquisition or other dispositions series of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not related Acquisitions made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not for consideration in excess of $20,000,000 in any fiscal year, provided that 50,000,000 will require the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year approval of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)Required Lenders.
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 assign, lease, sublease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of substantially all its assets (whether now owned or hereafter acquired), or any Equity Interests of any Subsidiaryassets, 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 prohibitPerson except:
(a) the purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary of the Borrower or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing continuing, (i) the merger of any wholly owned Domestic Subsidiary of the Borrower SSCC may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any wholly owned Domestic Subsidiary of the Borrower may merge into or consolidate with any other 90% wholly owned Domestic Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% wholly owned Domestic Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) andBorrower, provided that, in each case, (Ax) in the case of each of clauses (i) and (ii), no person Person other than the Borrower or a 90% wholly owned Domestic Subsidiary of the Borrower receives any consideration and (By) in the case of clause (ii), if event that any non-surviving person was Loan Party is a Guarantor party to such merger or consolidation and is not the surviving person must be a Guarantorentity, the surviving entity shall, simultaneously with such merger or consolidation, assume all the obligations of such Loan Party hereunder and under the other Loan Documents;
(cb) Sale purchases of inventory, equipment and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual real property in the ordinary course of business. Notwithstanding anything ;
(c) acquisitions constituting Consolidated Capital Expenditures permitted by Section 7.13;
(d) acquisitions constituting Investments permitted by Section 7.04;
(e) the Borrower may contribute the properties and assets (other than the real property and any IRB-secured property) of the Brewton, Alabama mill, and may lease the real property and IRB-secured property of the Brewton, Alabama mill on a long-term basis and for nominal consideration, to JSC Newco pursuant to the contrary contained aboveLiability Management Transactions (it being agreed that such contribution and lease may be made or consummated notwithstanding the provisions of any Security Agreement or any Mortgage), Holdings must at all times ownprovided that (A) the Borrower shall designate JSC Newco as a Material Subsidiary, directly or indirectly, 100% of the Equity Interests of and the Borrower and Opco GP JSC Newco shall comply with the applicable provisions of Section 6.10 (except that no leasehold mortgage shall be required with respect to such lease), and (B) such lease is in form and substance satisfactory to the extent Opco GP is liquidated or consolidated with Holdings Senior Managing Agents;
(f) in connection with or the Monetization Sale, the 1999 Timberlands Sale and the Newberg Mill Sale; and
(g) in contemplation of connection with the IPO Reorganization)Oregon City Mill Sale.
Appears in 1 contract
Mergers, Consolidations. Sales of Assets and Acquisitions. Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any SubsidiaryBorrower 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 personPerson, except that this Section shall not prohibit:
(a) (i) the sale of inventory, supplies, materials and equipment and the purchase and sale of inventory contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business by the Borrower Holdings or any Subsidiary of Subsidiary, (ii) the Borrower or the acquisition sale of any other asset in the ordinary course of business by Holdings or any Subsidiary, (excluding assets constituting investments iii) the sale of surplus, obsolete or worn out equipment or other property in the type subject to Section 6.04ordinary course of business by Holdings or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (i) the merger of any Subsidiary of the Borrower into the any Borrower in a transaction in which the such Borrower is the surviving corporation and corporation, (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower Loan Party in a transaction in which the surviving or resulting entity is a 90% Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) Loan Party and, (A) in the case of each of clauses (i) and (ii), no person Person other than such Borrower or a Loan Party receives any consideration, (iii) 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 or (iv) the liquidation or dissolution (other than the Borrower Borrowers) or a 90% change in form of entity of Holdings or any Subsidiary of the Borrower receives any consideration and (B) if Holdings determines in good faith that such liquidation or dissolution is in the case best interests of clause (ii), if any non-surviving person was a Guarantor Holdings and is not materially disadvantageous to the surviving person must be a GuarantorLenders;
(c) sales, transfers, leases or other dispositions to Holdings or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a 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 the Domestic Borrower, 3.75% 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;
(de) investments Investments permitted by Section 6.04;
(e) subject to , Liens permitted by Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate6.02 and Dividends permitted by Section 6.06;
(f) sales, leases the purchase and sale or other dispositions transfer (including by capital contribution) of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower Receivables Assets pursuant to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c)Permitted Receivables Financings;
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(lh) 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 Domestic Borrower, 3.75% 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 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;
(j) licensing and cross-licensing arrangements involving any technology or other intellectual property of any Borrower or any Subsidiary in the ordinary course of business;
(k) sales, leases or other dispositions of inventory of Holdings and its Subsidiaries determined by the Subject Property pursuant management of Holdings or any Borrower to be no longer useful or necessary in the Xxxxxx County Bond Transactions consummated 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); and
(l) any sale, transfer or other disposition of assets related to Multiphase Power and Processing Technologies, LLC and Dresser-Rand and Enserv Services Sdn. Bnd. in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property constitutive documents related thereto and in the ordinary course of businessan aggregate amount not to exceed U.S.$10 million. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) Holdings must shall at all times own, directly or indirectly, 10085% of the Equity Interests of each Borrower free and clear of any Liens other than Liens created by the Borrower Security Documents, (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 Loan Parties pursuant to paragraph (c) hereof and Opco GP purchases, sales or transfers pursuant to paragraph (except to f) hereof) unless such disposition is for fair market value, (iii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a), (d), (f) or (k) 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 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 for purposes of clauses (ii) and (iii), the extent Opco GP amount of any secured Indebtedness or other Indebtedness of a Subsidiary that is liquidated not a Loan Party (as shown on Holdings' or consolidated with Holdings in connection with such Subsidiary's most recent balance sheet or in contemplation the notes thereto) of Holdings or any Subsidiary of Holdings that is assumed by the IPO Reorganization)transferee of any such assets shall be deemed cash.
Appears in 1 contract
Mergers, Consolidations. Sales of Assets and Acquisitions. Merge into or (a) Neither the Company nor the Guarantor shall consolidate with or merge into any other personPerson or convey, transfer 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) more transactions all or any part substantially all of its assets to any other Person without the prior written consent of all of the Lenders (whether now owned or hereafter acquirednot to be unreasonably withheld), unless (i) such consolidation, merger, conveyance, transfer or any Equity Interests of any Subsidiarylease shall not adversely affect the right, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part title and interest of the assets Company in and to the Aircraft or the Liens of any other personthe Security Trustee, except that this Section shall not prohibit:
in each case in the opinion of the Security Trustee, (aii) the purchase and sale financial condition of inventory the Company and/or the Guarantor, as the case may be, after such consolidation, merger, conveyance, transfer or lease shall be no worse than that of the Company and/or the Guarantor, as the case may be, as set forth in the ordinary course of business by the Borrower or any Subsidiary most recent financial statements of the Borrower Guarantor delivered to the Facility Agent under Section 8.04(a) or the acquisition of any other asset (excluding assets constituting investments of the type subject to Section 6.04) in the ordinary course of business;
(b) if at the time thereof and (iii) immediately after giving effect thereto to such transaction, no Default or Event of Default or Default shall have occurred and be continuing continuing.
(ib) the Upon any such consolidation or merger of any Subsidiary of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any Subsidiary of the Borrower into or with any other 90% Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic Subsidiary) and, (A) in the case of each of clauses (i) and (ii), no person other than the Borrower or a 90% Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantor;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower Company or the BorrowerGuarantor with or into, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of or the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of conveyance, transfer or lease by the Borrower Company or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value Guarantor of all property soldor substantially all of its assets to, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied any Person in accordance with this Section 2.12(c);
(g) sales8.08, leases such Person will succeed to, and be substituted for, and may exercise every right and power of, the Company and the Guarantor, as the case may be, under the Operative Documents with the same effect as if such Person had been named as “the Company” and/or “the Guarantor”, as the case may be, therein. In the event of any such conveyance, transfer or other dispositions of inventory lease, the Company and/or the Guarantor, as the case may be, or any successor Person that shall have become such in the manner prescribed in this Section 8.08 shall be released and discharged from its liability in respect of the Borrower Mortgage and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual property in the ordinary course of business. Notwithstanding anything to the contrary contained above, Holdings must at all times own, directly or indirectly, 100% of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings in connection with or in contemplation of the IPO Reorganization)Operative Documents.
Appears in 1 contract
Samples: Term Loan Agreement (Sun Country Airlines Holdings, Inc.)
Mergers, Consolidations. Sales of Assets and Acquisitions. Merge into or amalgamate or consolidate with any other personPerson, or permit any other person Person to merge into or amalgamate or consolidate with it, or sell, transfer, lease assign, lease, sublease or otherwise dispose of (in one transaction or in a series of transactions) all or any part substantially all of its assets (whether now owned or hereafter acquiredwhen taken as a whole in combination with the other assets and properties of the Borrowers and the Subsidiaries), or any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section shall not prohibitPerson except:
(a) if at the purchase time thereof and sale immediately after giving effect thereto no Default or Event of inventory Default shall have occurred and be continuing, (i) any wholly owned Domestic Subsidiary (other than FinSub and SLP US and its subsidiaries) may merge into or consolidate with, liquidate or dissolve into, or sell, transfer, assign, lease, sublease or otherwise dispose of all or substantially all of its assets to, Stone in a transaction in which Stone is the ordinary course surviving corporation, (ii) any wholly owned Domestic Subsidiary (other than FinSub) may merge into or consolidate with, liquidate or dissolve into, or sell, transfer, assign, lease, sublease or otherwise dispose of business by the Borrower all or substantially all of its assets to, SLP US or any other wholly owned Domestic Subsidiary in a transaction in which the surviving entity is SLP US or a wholly owned Domestic Subsidiary (provided that SLP US shall be the surviving entity if it is a party to such transaction), and (iii) any wholly owned Canadian Subsidiary may merge into or consolidate or amalgamate with, liquidate or dissolve into, or sell, transfer, assign, lease, sublease or otherwise dispose of the Borrower all or the acquisition substantially all of its assets to, Canco or any other asset wholly owned Canadian Subsidiary in a transaction in which a Canco Credit Party is the surviving corporation (excluding assets constituting investments of provided that Canco shall be the type subject surviving entity if it is a party to Section 6.04such transaction), provided that, in each case, (x) no Person other than Stone or Canco, as the case may be, or a wholly owned Domestic Subsidiary or Canadian Subsidiary, as the case may be, receives any consideration and (y) in the ordinary course event that the surviving entity would become a wholly owned Domestic Subsidiary of businessSLP US or a wholly owned Canadian Subsidiary of Canco and has not previously become a Guarantor, the surviving entity shall, simultaneously with such merger or consolidation, comply with the requirements of Section 6.10(b) to the extent required by such Section 6.10(b);
(b) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing continuing, any wholly owned Foreign Subsidiary (iother than a Canadian Subsidiary) the merger of any Subsidiary of the Borrower into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any Subsidiary of the Borrower may merge into or with consolidate with, liquidate or dissolve into, or sell, transfer, assign, lease, sublease or otherwise dispose of all or substantially all of its assets to, any other 90% wholly owned Foreign Subsidiary of the Borrower in a transaction in which the surviving entity is a 90% Subsidiary of the Borrower (which shall be a domestic Subsidiary if the non-surviving person shall be a domestic wholly owned Foreign Subsidiary) and, (A) in the case of each of clauses (i) and (ii), provided that no person Person other than the Borrower Stone, an SLP Credit Party or a 90% wholly owned Foreign Subsidiary of the Borrower receives any consideration and (B) in the case of clause (ii), if any non-surviving person was a Guarantor the surviving person must be a Guarantorconsideration;
(c) Sale purchases of inventory, equipment and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the Borrower or any Subsidiary of the Borrower to the Borrower or to a domestic 90% Subsidiary of the Borrower, (ii) from any Foreign Subsidiary of the Borrower to any Wholly Owned Subsidiary of the Borrower or the Borrower, (iii) from any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower to any other Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower or (iv) from any Foreign Subsidiary that is a Wholly Owned Subsidiary of the Borrower to any Foreign Subsidiary that is a non-Wholly Owned Subsidiary of the Borrower, provided that the fair market value of all property sold, leased or transferred pursuant to this clause (iv) shall not exceed $20,000,000 in the aggregate;
(f) sales, leases or other dispositions of equipment or other property of the Borrower or its Subsidiaries determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(g) sales, leases or other dispositions of inventory of the Borrower and its Subsidiaries not made in the ordinary course of business determined by the general partner or senior management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower and its Subsidiaries, provided that the Net Proceeds thereof shall be applied in accordance with Section 2.12(c);
(h) the sale of any Equity Interests of any Subsidiary of the Borrower in which less than 90% of the Equity Interests is owned by the Borrower and its Subsidiaries;
(i) sales, leases or other dispositions of property having a net book value not in excess of $20,000,000 in any fiscal year, provided that the Net Proceeds thereof are applied in accordance with Section 2.12(c) or are used within one year of the date of receipt thereof to purchase assets useful in the business of the Borrower and its Subsidiaries, provided further, that no sale may be made pursuant to this paragraph (i) of the Equity Interests of any Subsidiary except in connection with the sale of all its outstanding Equity Interests that are held by the Borrower and any other Subsidiary and provided further, that to the extent that the net book value of such property sold, leased or disposed in any fiscal year is less than $20,000,000, the amount of such difference, but in no case more than $10,000,000, may be carried forward and used for sales, leases, or dispositions of property in the immediately succeeding fiscal year (after the full amount such sales, leases and other dispositions of property otherwise permitted to be made under this paragraph (i) in such fiscal year, without regard to the provisions of this proviso, have been made) (it being understood that amounts once carried forward into such succeeding fiscal year shall lapse and terminate at the end of such fiscal year);
(j) the Transaction;
(k) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(l) sales, leases or other dispositions of the Subject Property pursuant to the Xxxxxx County Bond Transactions consummated in accordance with the definition thereof;
(m) the IPO Reorganization; and
(n) licenses of intellectual real property in the ordinary course of business. Notwithstanding anything to ;
(d) acquisitions constituting Consolidated Capital Expenditures permitted by Section 7.13;
(e) acquisitions, mergers and other transfers constituting Investments permitted by Section 7.04, provided (i) that Stone or Canco, as the contrary contained abovecase may be, Holdings must at all times ownshall be the surviving corporation in any merger or consolidation between it and any other Person and that in any merger or consolidation involving a Subsidiary that is a Loan Party, directly the surviving entity is a Loan Party and (ii) this clause (e) shall not permit the merger or indirectlyconsolidation of SLP US and Stone; and
(f) the Acquisition (including amalgamations, 100% mergers and liquidations of the Equity Interests of the Borrower and Opco GP (except to the extent Opco GP is liquidated or consolidated with Holdings various Subsidiaries in connection with or in contemplation therewith as contemplated by the Reorganization Agreement) and the continuation of the IPO Reorganization)Canco as a New Brunswick corporation.
Appears in 1 contract
