RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2, each of Company and its Consolidated Subsidiaries will not enter into any transaction of merger or consolidate, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except: (i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Company, or be liquidated, wound up or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of Company; provided that, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations; (ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and (iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lenders.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Any Subsidiary of Company may be merged or consolidated with or into Company or any whollyWholly-owned Owned Subsidiary of CompanyCompany or Barter (PROVIDED that the Company owns at least 95% of all equity interests in Barter), or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any whollyWholly-owned Owned Subsidiary of CompanyCompany or Barter (PROVIDED that the Company owns at least 95% of all equity interests in Barter); provided PROVIDED that, in the case of such a merger merger, Company, such Wholly-Owned Subsidiary or consolidation, Company or such wholly-owned Subsidiary Barter shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all make Investments made permitted under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and7.3;
(iii) Company and its Wholly-Owned Subsidiaries may receive contributions of assets and property from their respective shareholders;
(iv) Company and its Subsidiaries may make Capital Expenditures;
(v) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales, including, without limitation, sales of inventory and obsolete equipment in the ordinary course of business; PROVIDED that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) Company and its Subsidiaries may sell, exchange transfer or otherwise dispose of assets in Asset Sale transactions; Sales provided that (a) any Asset Sale is made for the fair market value of assets so sold, transferred or otherwise disposed of by Company and its Subsidiaries (exclusive of assets lost or damaged as the result of any accidental event and any assets sold in a sale and lease-back transaction permitted under subsection 7.7), determined without duplication, is not in excess of $5,000,000 in any year; PROVIDED that (y) the consideration received for such assets and for (excluding any lost or damaged assets) shall be in an amount at least eighty-five percent (85%) cash, equal to the fair market value thereof; and (bz) 75% of the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a)consideration received shall be cash; and, provided, further, that
(vii) Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lendersmake Permitted Acquisitions.
Appears in 1 contract
Samples: Credit Agreement (Oakley Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Holdings shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, or make any Business Acquisition, except:
(i) any Subsidiary of Company Borrower (other than a Subsidiary which has become liable for Indebtedness permitted under subsection 7.1(v)) may be merged or consolidated with or into Company Borrower or any wholly-owned Wholly Owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Wholly Owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company Borrower or such wholly-owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iii) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided further thatthat the consideration received for such assets shall be in an amount at least equal to the fair market value thereof as determined by Borrower in good faith;
(iv) subject to subsection 7.11, Borrower and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $5,000,000 in any Fiscal Year or $15,000,000 in the aggregate; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof as determined by Borrower in good faith; (b) except in the case of such a merger or consolidation or disposition of a majority like kind exchange, at least 85% of the stock consideration received shall be Cash, Cash Equivalents or the assumption of Indebtedness; and (c) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(v) so long as no Potential Event of Default or Event of Default shall have occurred and be continuing or would result therefrom and Borrower delivers an Officers' Certificate to Administrative Agent and Lenders, in form and substance reasonably satisfactory to Administrative Agent, confirming that it will be in compliance, on a Subsidiary or substantially all pro forma basis (including by giving effect to Pro Forma Projected EBITDA) after giving effect to such Permitted Acquisition as if it had occurred at the beginning of the businessperiod specified in the applicable covenant, property or assets of such a Subsidiary with all covenants set forth in subsection 7.6 hereof, commencing on January 1, 1997 Borrower and its Subsidiaries may make Permitted Acquisitions in an amount not to exceed in the aggregate $20,000,000 (the "AFFECTED SUBSIDIARYPermitted Acquisition Amount") of Company which is a guarantor of in any of the Obligations, Fiscal Year; provided that (a) the continuing, surviving or transferee corporation shall expressly assume the obligations Borrower and it Subsidiaries may make Permitted Acquisitions in excess of the Affected Subsidiary under Permitted Acquisition Amount in any Fiscal Year so long as such guaranty and excess is funded by Cash common equity contributions to, or Cash purchases of common equity from, Holdings, the Cash proceeds of which are contributed to Borrower, (b) in the case of a merger or consolidation, event that the net worth of the continuing or surviving corporation Permitted Acquisition Amount in any Fiscal Year (calculated without before giving effect to any increase in such amount pursuant to this clause (b) but after giving effect to any reduction in such amount as a result of Permitted Acquisitions made pursuant to succeeding clause (c) is greater than the amount of intercompany Indebtedness Permitted Acquisitions made by Borrower and its Subsidiaries during such Fiscal Year, the lesser (i) 100% of such unutilized amount and (ii) $10,000,000 may be utilized to effect additional Permitted Acquisitions in the immediately succeeding two Fiscal Years, provided, that (x) any amount carried forward from an immediately preceding Fiscal Year may not be utilized during a current Fiscal Year unless and until the relevant Permitted Acquisition Amount for which the continuing or surviving corporation is liable as compared such current Fiscal Year shall have been utilized in full to make Permitted Acquisitions during such current Fiscal Year and (y) no amount once carried forward to the second succeeding Fiscal Year may be carried forward to Fiscal Years thereafter, and (c) in the event that Borrower and its Subsidiaries have made Permitted Acquisitions in any Fiscal Year pursuant to preceding clauses (a) and (b) in an amount of intercompany Indebtedness for which equal to the Affected Subsidiary was liable immediately prior maximum amount permitted to be made in such Fiscal Year pursuant to such merger or consolidation) shall not be less than the net worth clauses, Borrower and its Subsidiaries may make additional Permitted Acquisitions in such Fiscal Year by utilizing up to 50% of the Affected Subsidiary immediately prior Permitted Acquisition Amount permitted to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, be made in the case of immediately succeeding Fiscal Year and with any Permitted Acquisitions made pursuant to this clause (c) in such a merger or consolidation or disposition of a majority of current Fiscal Year to reduce the stock of a Subsidiary or substantially all of Permitted Acquisition Amount in the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligationsimmediately succeeding Fiscal Year;
(iivi) Company Holdings and its Consolidated Subsidiaries may acquire all or substantially all make the businessAcquisition, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company Merger and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made Contribution on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11Date; and
(iiivii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company Borrower and its Subsidiaries may not sell, exchange discount or otherwise dispose transfer defaulted receivables in connection with the collection thereof in the ordinary course of all or a substantial portion of any Division without the prior written consent of Requisite Lendersbusiness.
Appears in 1 contract
Samples: Credit Agreement (Rose Hills Co)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject Company shall not, and shall not permit any of its Subsidiaries to subsection 5.2, each of Company and its Consolidated Subsidiaries will not enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided PROVIDED that, in the case of such a merger or consolidationmerger, Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company and its Consolidated Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(such asset iv) Company and its Subsidiaries may sell or stock acquisitions being herein collectively referred to as "ACQUISITIONS")otherwise dispose of assets in transactions that do not constitute Asset Sales; provided PROVIDED that the purchase price consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(including all assumed liabilitiesv) paid with respect Company and its Subsidiaries may make Permitted Acquisitions; and
(vi) subject to Acquisitions made on or after subsection 7.13, Company and its Subsidiaries may make Asset Sales, the Closing Date plus the amount aggregate value of all Investments made under subsection 6.3(viisuch sales having a book value not exceeding 15% of the consolidated total assets of the Company on the date of such sale PROVIDED that (x) does not exceed the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y) no more than $5,000,000 20,000,000 of the consideration received in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock sales shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii)non-cash; and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash, and (bz) the Net Cash Asset Sale Proceeds of each such Asset Sale are Sales shall be applied in conformity with as required by subsection 2.4B(ii)(a2.4B(iii)(a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lenders.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Borrower or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any PersonPerson or any division or line of business of any Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of Borrower's, or any of its Subsidiary's, business), except:
(i) any Subsidiary of Company Borrower may be merged or consolidated with or into Company Borrower or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company Borrower and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Borrower and its Consolidated Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Borrower and its Subsidiaries may sell or otherwise dispose of (i) inventory sold in the ordinary course of business and (ii) any such asset or stock acquisitions being herein collectively referred other assets in an aggregate amount not to as "ACQUISITIONS")exceed $200,000 in any fiscal year; provided that the purchase price consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(including all assumed liabilitiesv) paid with respect to Acquisitions made on Borrower and its Subsidiaries may sell or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 discount, in each case without recourse and in the aggregate for all such Acquisitions; provided that in calculating the purchase price ordinary course of such Acquisitionsbusiness, the purchase price attributable to any assets acquired Accounts arising in the IT Exchange ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(vi) Borrower and its Subsidiaries may be excluded; provided further that grant leases and subleases to other Persons in the extent that Company pays all ordinary course of business not materially interfering with the conduct of the business of Borrower or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11Subsidiaries; and
(iiivii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company Borrower and its Subsidiaries may not sell, exchange make or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lendersenter into Permitted Acquisitions.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Each Borrower shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sub-lessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Company, or may be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of Company; provided that, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; and Company and its Subsidiaries may engage in sale/leaseback transactions permitted under subsection 7.10;
(iii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that -------- the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (as reasonably determined by the Board of Directors of Company);
(iv) subject to subsection 7.13, Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $1,000,000; provided that (x) the consideration received for such assets -------- shall be in an amount at least equal to the fair market value thereof (as reasonably determined by the Board of Directors of Company); (y) the sole consideration received shall be cash; and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a); and Company and its Subsidiaries may make transfers of any of their properties or assets to another Person in transactions in which the Company or its Subsidiaries receive in exchange therefor like properties or assets that will be used in the business of the Company or its Subsidiaries; provided that (i) the aggregate fair market value (as -------- determined in good faith by the Board of Directors of Company) of the property or assets being transferred by Company or such Subsidiary is not greater than the aggregate fair market value (as determined in good faith by the Board of Directors of Company), of the like property or assets received by Company or such Subsidiary in such exchange and (ii) such aggregate fair market value of all property or assets transferred by Company and any of its Subsidiaries in connection with such exchanges shall not exceed $5,000,000; and
(v) Company and its Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or all of the stock or other evidence of beneficial ownership of, of any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitionsnursery business, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all peat or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company potting soil or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange mix business or otherwise dispose of assets in Asset Sale transactionsbusinesses reasonably related thereto; provided that (a) any Asset Sale the contemplated acquisition is made for neither -------- contested nor hostile nor opposed by the fair market value board of such assets and for at least eighty-five percent (85%) cash, and directors of the targeted company or business; (b) no Event of Default or Potential Event of Default has occurred and is then continuing; (c) after giving effect (including, without limitation, any limitation on any assumed or acquired Indebtedness) to such acquisition and Indebtedness incurred in connection therewith, Company is in pro forma compliance with its financial covenants; provided -------- that for purposes of calculating the Net Cash Proceeds Consolidated Leverage Ratio, the aggregate earnings attributable to acquired businesses or companies whose financials are unreviewed and unaudited shall not exceed 20% of each Consolidated EBITDA before giving effect to the consolidation with such Asset Sale acquired businesses or companies and that Company delivers to Agent and Lenders prior to the consummation of such acquisition a Compliance Certificate demonstrating such pro forma covenant compliance; (d) the provisions of subsections 6.9 and 6.10 of this Agreement are applied complied with respect to any Subsidiary so acquired; (e) Company obtains Agent's and Requisite Lenders' consents to any acquisition or series of related acquisitions in conformity with subsection 2.4B(ii)(a); excess of $25,000,000 and, providedto the extent such consent is required, furthershall have delivered to Agent and Lenders, that on a timely basis prior to the consummation of such acquisition, such historical and pro forma projected financial statements (which projected financial statements shall be prepared on a quarterly basis for the succeeding twelve-month period and on an annual basis for the period commencing after such twelve- month period and concluding on the date of the final maturity of the Loans), sources and uses analysis, pro forma covenant calculations and such other due diligence information as may be reasonably requested by Agent or Lenders. Subject to completion of such due diligence to the reasonable satisfaction of Agent and Requisite Lenders, Agent and Requisite Lenders hereby agree to approve or disapprove acquisitions as soon as reasonably practicable but in any event within ten Business Days of receipt of such information; and (f) Company and its Subsidiaries may will not sell, exchange incur or otherwise dispose of all assume in connection with any such contemplated acquisition any material environmental or a substantial portion of any Division without the prior written consent of Requisite Lendersother material contingent liability.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sub-lessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any portion of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all any portion of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Wholly Owned North American Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Wholly Owned North American Subsidiary of Company, or may be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Wholly Owned North American Subsidiary of Company; provided that, in the case of such a merger or consolidationmerger, Company or such wholly-owned Wholly Owned North American Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(iii) Company and its Subsidiaries may make Permitted Acquisitions and Permitted Investments to the extent permitted by subsection 7.3A(viii);
(iv) Company and its Subsidiaries may make Asset Sales of the assets listed on Schedule 1.1C; provided that (a) any until the aggregate, cumulative amount of Net Asset Sale is made for Proceeds from such Asset Sales exceeds the fair market value West 34th Street Loan Amount, (1) Company shall use such Net Asset Sale Proceeds to repay Priority Secured Revolving Loans (but not reduce the Priority Secured Revolving Loan Commitments) in accordance with the Priority Secured Credit Agreement and (2) to the extent such Net Asset Sale Proceeds exceed the amount of Priority Secured Revolving Loans outstanding at the time Company receives such assets and for at least eighty-five percent (85%) cashNet Asset Sale Proceeds, Company may retain such excess, and (b) the aggregate, cumulative amount of Net Cash Asset Sale Proceeds of each from such Asset Sale are Sales in excess of the West 34th Street Loan Amount shall be applied as a mandatory prepayment in conformity accordance with subsection 2.4B(ii)(a);
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $10,000,000 in any individual case or $30,000,000 in the aggregate, in each case in compliance with subsection 2.4B(ii)(a); provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, (b) at least 90% of the consideration received shall be cash and (c) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(ii)(a); 103
(vi) Company may cause the dissolution of any Subsidiary to the extent permitted by subsection 6.2; and, provided, further, that
(vii) Company and its Wholly-Owned North American Subsidiaries may make Asset Swaps; provided that each of the following conditions is satisfied: (a) the aggregate fair market value (as determined in good faith by the Board of Directors of Company) of such Asset Swaps shall not sell, exchange exceed $25,000,000 in any Fiscal Year or otherwise dispose $75,000,000 during the life of all or a substantial this Agreement; (b) the fair market value of the assets received (including Cash not exceeding 5% of such value) pursuant to such Asset Swap (the "ACQUIRED ASSETS") shall be equal to at least the fair market value (as determined in good faith by the Board of Directors of Company) of the assets transferred pursuant to such Asset Swap (the "TRANSFERRED ASSETS"); (c) the cash portion of any Division without consideration received by Company or any of its Subsidiaries shall be used to make a mandatory prepayment in accordance with subsection 2.4B(ii)(a); (d) the Acquired Assets shall at all times be subject to a Second Priority Lien of Lenders pursuant to the Collateral Documents; (e) immediately prior written consent to the consummation of Requisite Lenderssuch Asset Swap, Company shall certify to Administrative Agent, and Administrative Agent shall be satisfied in its sole discretion, that, after giving effect to such Asset Swap on a pro forma basis, Company and its Wholly-Owned North American Subsidiaries will be Solvent; and (f) both before and immediately after consummation of such Asset Swap, no Default or Potential Event of Default shall have occurred and be continuing.
Appears in 1 contract
Samples: Term Loan Agreement (Loews Cineplex Entertainment Corp)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Credit Parties shall not, each and shall not permit any of Company and its Consolidated their respective Subsidiaries will not to, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its their business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquiredhereafter acquired (other than sales and other dispositions, including the sale, transfer, replacement or other disposition of equipment and inventory, in each case, in the ordinary course of business), or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, Person or any division or line of business of any Person or enter into any LMA except:
(ia) Borrower and any Subsidiary of Company Borrower may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Companyinto, or be liquidatedmay convey, wound up or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred lease or otherwise disposed of, in one transaction or a series dispose of transactions, assets to Company or any wholly-owned Subsidiary of Company; provided that, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary Borrower (PROVIDED that Borrower shall be the continuing or surviving corporationentity) or with or into or to any one or more Subsidiaries of Borrower and, (b) any Subsidiary of Borrower may liquidate or dissolve as long as in connection therewith all of its assets are transferred to Borrower or any Subsidiary of Borrower; provided further thatPROVIDED that a License Sub may only be merged with or liquidated or dissolved into, another License Sub; PROVIDED FURTHER, that none of the foregoing transactions shall result in any diminution in ownership by Borrower (on a consolidated basis) of any of the assets affected thereby;
(ii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iii) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(iv) So long as no Event of Default or Potential Event of Default shall have occurred and be continuing, or would result therefrom, Borrower and its Subsidiaries may consummate acquisitions of radio broadcasting stations in the United States (each, a "PERMITTED ACQUISITION") and may enter into LMA's for radio broadcasting stations in the United States upon satisfaction of the following conditions (as applicable):
(a) in the case of such a merger or consolidation or disposition of a majority Permitted Acquisition:
(1) each of the stock conditions set forth in subsection 4.2 shall have been satisfied to the extent applicable; and
(2) prior to any such Permitted Acquisition, Borrower shall have demonstrated, to Administrative Agent's reasonable satisfaction, pro forma compliance with each of a Subsidiary or substantially the covenants set forth in subsection 7.6 after giving effect to such Permitted Acquisition and throughout the remaining term of this Agreement and shall provide projections to Administrative Agent evidencing such compliance, all of the businessforegoing to be reasonably satisfactory in form and substance to Administrative Agent; PROVIDED, property or assets HOWEVER, that if on the date of such Permitted Acquisition the aggregate fair market value of all the Acquired Stations in such Permitted Acquisition is less than $20,000,000, Borrower shall only be required to deliver an Officers' Certificate of Borrower providing a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any representation and warranty that Borrower's commercially reasonable projections demonstrate that Borrower shall be in pro forma compliance with each of the Obligations, (a) covenants set forth in subsection 7.6 after giving effect to such Permitted Acquisition and throughout the continuing, surviving or transferee corporation shall expressly assume the obligations term of the Affected Subsidiary under such guaranty and this Agreement.
(b) in the case of an LMA:
(1) if such LMA is not of a merger station subject to a pending Permitted Acquisition, such LMA together with any other LMA's of stations not subject to pending Permitted Acquisitions in effect at such time shall not contribute (or consolidation, the net worth be projected to contribute) more than 10% of Consolidated Operating Cash Flow for any four consecutive Fiscal Quarter Period; and
(2) Borrower shall have delivered to Administrative Agent an Officer's Certificate dated as of the continuing date Borrower or surviving corporation (its Subsidiaries enter into such LMA and calculated without to give effect to any related transactions, demonstrating compliance with the conditions set forth in this subsection 7.7(iv) and the covenants set forth in this Agreement after giving effect to any increase such LMA;
(v) Borrower and its Subsidiaries may make Asset Sales of assets having an aggregate, cumulative fair market value not to exceed $10,000,000 during the term of this Agreement; PROVIDED that (a) the consideration received for such assets shall be in the an amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared at least equal to the amount fair market value thereof and (b) the sole consideration received shall be Cash or Cash and Permitted Sale Notes;
(vi) Borrower and its Subsidiaries may make other Asset Sales; PROVIDED that either (I) each of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior following conditions is satisfied: (a) the assets subject to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral DocumentAsset Sales, in the case aggregate together with all other assets sold pursuant to Asset Sales of the Borrower and its Subsidiaries since the Closing Date did NOT generate more than 10% of Consolidated Operating Cash Flow taken as a single accounting period (calculated on a cumulative basis since the Closing Date), (b) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (c) the sole consideration received shall be Cash or Cash and Permitted Sale Notes OR (II) Requisite Lenders approve of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the ObligationsAsset Sale;
(iivii) Company Borrower and its Consolidated Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on any division or after the Closing Date plus the amount line of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price business of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that Person to the extent that Company pays all or any portion of the purchase price for such acquisition constitutes an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this Investment otherwise permitted under subsection 6.7(ii7.3(ix); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iiiviii) Company As long as no Event of Default or Potential Event of Default has occurred and is continuing, the Credit Parties may sell, exchange sell or otherwise dispose of assets in Asset Sale transactionstransfer Tower Sites to BFT; provided PROVIDED that (a) any Asset Sale is made the consideration for such sale or transfer shall consist of a promissory note or notes in an aggregate principal amount of not less than the greater of (x) the fair market value of such assets and Tower Sites or (y) the depreciated acquisition costs to the applicable Credit Party for such Tower Site, which shall have a final maturity of not more than 20 years from the date of issuance thereof, shall provide for monthly cash interest at least eighty-five percent (85a per annum rate of not less than 6.0%) cash, and shall provide for monthly repayments of principal such that the amount of each monthly installment of principal and interest through and including the last such installment shall be equal to each other such installment; (b) those Credit Parties which are transferors of such Tower Sites shall, substantially concurrently with such sale or transfer, enter into lease contracts with BFT for such Tower Sites, which contracts shall be in form and substance reasonably satisfactory to Administrative Agent; (c) in any event, in any month following such transfer the Net Cash Proceeds aggregate of each all lease payments for such Asset Sale are applied Tower Sites made in conformity with subsection 2.4B(ii)(asuch month by such Credit Party shall not exceed the amount of the installment of principal and interest paid during such month in cash to such Credit Party pursuant to the promissory note or notes referred to in the preceding clause (a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose (d) such Tower Sites and the leases in respect thereof shall be subject to the terms and conditions of the BFT Consent Letter (all or of the foregoing transfers and related transactions being a substantial portion of any Division without the prior written consent of Requisite Lenders"PERMITTED TOWER TRANSFER").
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Holdings and Company shall not, each and shall not permit any of Company's Subsidiaries to, alter the corporate, capital or legal structure of Holdings, Company and its Consolidated Subsidiaries will not or any of Company's Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) the Merger may be consummated and any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company or such wholly-owned -------- Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Acquiring Subsidiaries may make Permitted Acquisitions, without the consent of Agents or substantially all Lenders, in an aggregate amount up to $200,000,000; provided that: --------
(a) the businesssole consideration that may be used to consummate such Permitted Acquisitions is any combination of the following: (x) Permitted Acquisition Cash Financing in an aggregate amount not to exceed $100,000,000, (y) Permitted Acquisition Equity Financing in an amount not to exceed $100,000,000, and/or (z) Cellular Systems (including any property and assets related to such Cellular Systems) owned and operated by Company or fixed any of its Subsidiaries, which Cellular Systems shall be exchanged or "swapped" for Cellular Systems (including any property and assets of, related to such Cellular Systems) owned and operated by another Person (other than Company or stock or other evidence any of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"Subsidiaries); provided that in the purchase price case of exchanges or "swaps" of -------- Cellular Systems (including and any related property and assets), (1) the aggregate fair market value of all assumed liabilitiessuch Cellular Systems owned and operated by Company and its Subsidiaries being exchanged or "swapped" shall not exceed $100,000,000 less the aggregate amount of Net Asset ---- Sale Proceeds reinvested by Company and its Subsidiaries in other Cellular Systems pursuant to subsection 7.7(vi)(c), (2) paid the total consideration received by Company or any of its Subsidiaries in connection with any such exchange or "swap" shall be 118 equal to the fair market value of the Cellular System being exchanged or "swapped" and (3) any such exchange or "swap" with Affiliates of Company and its Subsidiaries shall comply with the requirements of sections 4.11 and 4.15 of the Subordinated Note Indenture after giving effect to all waivers and amendments thereto;
(b) prior to entering into any binding agreement with respect to Acquisitions made on or any Permitted Acquisition, Company and its Subsidiaries, after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 giving effect to such Permitted Acquisition and using reasonable assumptions in the aggregate for opinion of Administrative Agent, shall be in Pro Forma Financial Covenant Compliance, and Company shall deliver to Administrative Agent and Lenders a pro forma Compliance Certificate reflecting such Pro --- ----- Forma Financial Covenant Compliance by Company and its Subsidiaries;
(c) prior to the completion of any Permitted Acquisition, Company shall, and shall cause its Subsidiaries to, obtain all such Acquisitions; provided Governmental Authorizations and all consents of other Persons (including without limitation the FCC), in each case that are necessary or advisable in calculating connection with the purchase price transfer of any FCC Licenses and the continued operation of the Cellular System or business being acquired in substantially the same manner as conducted prior to the consummation of such AcquisitionsPermitted Acquisition;
(d) contemporaneously with the completion of any Permitted Acquisition, Company shall, and shall cause its Subsidiaries to, grant to Administrative Agent (on behalf of Lenders) a valid and perfected First Priority Lien upon the purchase price attributable to any assets and other property acquired in connection with such Permitted Acquisition to the IT Exchange may be excludedextent such assets and property constitute or are otherwise comparable to the personal property Collateral given as security under this Agreement; provided further provided, -------- however, that Company need not, and need not cause its Subsidiaries to, ------- grant such valid and perfected First Priority Lien to the extent that Company pays all such a grant is not permitted by the terms of any Incurred Permitted Acquisition Indebtedness or any portion Assumed Permitted Acquisition Indebtedness;
(e) contemporaneously with or as soon as practicable after the completion of a Permitted Acquisition, Company shall, and shall cause its Subsidiaries to, transfer to the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated License Subsidiaries for such Acquisitions for purposes of determining compliance any Principal FCC Licenses acquired in connection with the provisions Permitted Acquisition provided, however, that the Company need not, and need not cause its -------- ------- Subsidiaries to, transfer to License Subsidiaries such Principal FCC Licenses to the extent such a transfer is not permitted by the terms of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11Incurred Permitted Acquisition Indebtedness or any Assumed Permitted Acquisition Indebtedness; and
(iiif) in the event an Acquiring Subsidiary acquires another Person (other than Company or any of its Subsidiaries) in connection with a Permitted 119 Acquisition, such acquired Person shall (x) be made an Intercompany Subsidiary of Company or be merged with and into Company or any of its Subsidiaries and (y) comply with the requirements of subsection 6.7 contemporaneously with the completion of such Permitted Acquisition;
(iv) Company and its Subsidiaries may selldispose of obsolete, exchange worn out or surplus property in the ordinary course of business;
(v) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that (a) any Asset Sale is made the -------- consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a)thereof; and
(vi) subject to subsection 7.13, provided, further, that Company and its Subsidiaries may make Asset Sales of assets, including without limitation Cellular Systems and any related property or assets; provided that --------
(a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; provided, however, -------- ------- that with respect to any such Asset Sales with Affiliates of Company and its Subsidiaries, such Asset Sales shall comply with the then existing requirements of sections 4.11 and 4.15 of the Subordinated Note Indenture after giving effect to all waivers and amendments thereto;
(b) the sole consideration received shall be cash; provided, -------- however, that with respect to such Asset Sales having a fair market ------- value not sellin excess of $100,000,000 in the aggregate, exchange the consideration received may be another Cellular System or otherwise dispose Systems (and any related property and assets) exchanged or "swapped" for in accordance with subsection 7.7(iii)(a) and up to $25,000,000 of all promissory notes from the purchaser of such assets (or a substantial portion an Affiliate of such purchaser);
(c) the Net Asset Sale Proceeds of such Asset Sales shall be applied as mandatory prepayments as required by subsection 2.4B(iii)(a); provided, however, that with respect to such Net Asset Sale Proceeds in -------- ------- an amount not to exceed (x) $100,000,000 less (y) the aggregate fair ---- market value of Cellular Systems being exchanged or "swapped" pursuant to subsection 7.7(iii)(a), such amount of such proceeds may be reinvested or committed to be reinvested by Company and its Subsidiaries within 180 days after receipt of such proceeds, and in fact so reinvested as soon as practical after receipt of any Division without required consents or approvals from the FCC and, in any event, not later than 360 days after receipt of such proceeds, in another Cellular System of equal or substantially similar fair market value in connection with a Permitted Acquisition pursuant to subsection 7.7(iii); and
(d) prior written consent to entering into any binding agreement with respect to any such Asset Sale, Company and its Subsidiaries, after giving effect to such Asset Sale and using reasonable assumptions in the opinion of Requisite LendersAdministrative Agent, shall be in Pro Forma Financial Covenant Compliance, and Company shall deliver to Administrative Agent and Lenders a pro forma Compliance Certificate reflecting such Pro Forma --- ----- Financial Covenant Compliance by Company and its Subsidiaries; provided -------- that the requirements of this clause (d) of subsection 7.7(vi) shall not be applicable to the initial Asset Sales made after the Closing Date having aggregate cumulative Net Asset Sales Proceeds not exceeding $50,000,000.
Appears in 1 contract
Samples: Credit Agreement (Price Communications Wireless Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Credit Parties shall not, each and shall not permit any of Company and its Consolidated their respective Subsidiaries will not to, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its their business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquiredhereafter acquired (other than sales and other dispositions, including the sale, transfer, replacement or other disposition of equipment and inventory, in each case, in the ordinary course of business), or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, Person or any division or line of business of any Person or enter into any LMA except:
(ia) Borrower and any Subsidiary of Company Borrower may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Companyinto, or be liquidatedmay convey, wound up or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred lease or otherwise disposed of, in one transaction or a series dispose of transactions, assets to Company or any wholly-owned Subsidiary of Company; Borrower (provided that, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary that Borrower shall be the continuing or surviving corporationentity) or with or into or to any one or more Subsidiaries of Borrower and, (b) any Subsidiary of Borrower may liquidate or dissolve as long as in connection therewith all of its assets are transferred to Borrower or any Subsidiary of Borrower; provided further thatthat a License Sub may only be merged with or liquidated or dissolved into, another License Sub; provided further, that none of the foregoing transactions shall result in any diminution in ownership by Borrower (on a consolidated basis) of any of the assets affected thereby;
(ii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iii) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(iv) So long as no Event of Default or Potential Event of Default shall have occurred and be continuing, or would result therefrom, Borrower and its Subsidiaries may consummate acquisitions of radio broadcasting stations in the United States (each, a “Permitted Acquisition”) and may enter into LMA’s for radio broadcasting stations in the United States upon satisfaction of the following conditions (as applicable):
(a) in the case of such a merger or consolidation or disposition of a majority Permitted Acquisition:
(1) each of the stock conditions set forth in subsection 4.2 shall have been satisfied to the extent applicable; and
(2) prior to any such Permitted Acquisition, Borrower shall have demonstrated, to Administrative Agent’s reasonable satisfaction, pro forma compliance with each of a Subsidiary or substantially the covenants set forth in subsection 7.6 after giving effect to such Permitted Acquisition and throughout the remaining term of this Agreement and shall provide projections to Administrative Agent evidencing such compliance, all of the businessforegoing to be reasonably satisfactory in form and substance to Administrative Agent; provided, property or assets however, that if on the date of such Permitted Acquisition the aggregate fair market value of all the Acquired Stations in such Permitted 90 Acquisition is less than $20,000,000, Borrower shall only be required to deliver an Officers’ Certificate of Borrower providing a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any representation and warranty that Borrower’s commercially reasonable projections demonstrate that Borrower shall be in pro forma compliance with each of the Obligations, (a) covenants set forth in subsection 7.6 after giving effect to such Permitted Acquisition and throughout the continuing, surviving or transferee corporation shall expressly assume the obligations term of the Affected Subsidiary under such guaranty and this Agreement.
(b) in the case of an LMA:
(1) if such LMA is not of a merger station subject to a pending Permitted Acquisition, such LMA together with any other LMA’s of stations not subject to pending Permitted Acquisitions in effect at such time shall not contribute (or consolidation, the net worth be projected to contribute) more than 10% of Consolidated Operating Cash Flow for any four consecutive Fiscal Quarter Period; and
(2) Borrower shall have delivered to Administrative Agent an Officer’s Certificate dated as of the continuing date Borrower or surviving corporation (its Subsidiaries enter into such LMA and calculated without to give effect to any related transactions, demonstrating compliance with the conditions set forth in this subsection 7.7(iv) and the covenants set forth in this Agreement after giving effect to any increase such LMA;
(v) Borrower and its Subsidiaries may make Asset Sales of assets having an aggregate, cumulative fair market value not to exceed $10,000,000 since the Effective Date; provided that (a) the consideration received for such assets shall be in the an amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared at least equal to the amount fair market value thereof and (b) the sole consideration received shall be Cash or Cash and Permitted Sale Notes;
(vi) Borrower and its Subsidiaries may make other Asset Sales; provided that either (I) each of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior following conditions is satisfied: (a) the assets subject to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral DocumentAsset Sales, in the case aggregate together with all other assets sold pursuant to Asset Sales of the Borrower and its Subsidiaries since the Effective Date did NOT generate more than 10% of Consolidated Operating Cash Flow taken as a single accounting period (calculated on a cumulative basis since the Closing Date), (b) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (c) the sole consideration received shall be Cash or Cash and Permitted Sale Notes OR (II) Requisite Lenders approve of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the ObligationsAsset Sale;
(iivii) Company Borrower and its Consolidated Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on any division or after the Closing Date plus the amount line of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price business of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that Person to the extent that Company pays all or any portion of the purchase price for such acquisition constitutes an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this Investment otherwise permitted under subsection 6.7(ii7.3(ix); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iiiviii) Company As long as no Event of Default or Potential Event of Default has occurred and is continuing, the Credit Parties may sell, exchange sell or otherwise dispose of assets in Asset Sale transactionstransfer Tower Sites to BFT; 91 provided that (a) any Asset Sale is made the consideration for such sale or transfer shall consist of a promissory note or notes in an aggregate principal amount of not less than the greater of (x) the fair market value of such assets and Tower Sites or (y) the depreciated acquisition costs to the applicable Credit Party for such Tower Site, which shall have a final maturity of not more than 20 years from the date of issuance thereof, shall provide for monthly cash interest at least eighty-five percent (85a per annum rate of not less than 6.0%) cash, and shall provide for monthly repayments of principal such that the amount of each monthly installment of principal and interest through and including the last such installment shall be equal to each other such installment; (b) those Credit Parties which are transferors of such Tower Sites shall, substantially concurrently with such sale or transfer, enter into lease contracts with BFT for such Tower Sites, which contracts shall be in form and substance reasonably satisfactory to Administrative Agent; (c) in any event, in any month following such transfer the Net Cash Proceeds aggregate of each all lease payments for such Asset Sale are applied Tower Sites made in conformity with subsection 2.4B(ii)(asuch month by such Credit Party shall not exceed the amount of the installment of principal and interest paid during such month in cash to such Credit Party pursuant to the promissory note or notes referred to in the preceding clause (a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose (d) such Tower Sites and the leases in respect thereof shall be subject to the terms and conditions of the BFT Consent Letter (all or of the foregoing transfers and related transactions being a substantial portion of any Division without the prior written consent of Requisite Lenders“Permitted Tower Transfer”).
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Each Borrower shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sub-lessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Company, or may be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of Company; provided that, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; and Company and its Subsidiaries may engage in sale/leaseback transactions permitted under subsection 7.10;
(iii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided -------- that the consideration 117 received for such assets shall be in an amount at least equal to the fair market value thereof (as reasonably determined by the Board of Directors of Company);
(iv) subject to subsection 7.13, Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $1,000,000; provided that (x) the consideration received for such -------- assets shall be in an amount at least equal to the fair market value thereof (as reasonably determined by the Board of Directors of Company); (y) the sole consideration received shall be cash; and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a); and Company and its Subsidiaries may make transfers of any of their properties or assets to another Person in transactions in which the Company or its Subsidiaries receive in exchange therefor like properties or assets that will be used in the business of the Company or its Subsidiaries; provided that (i) the -------- aggregate fair market value (as determined in good faith by the Board of Directors of Company) of the property or assets being transferred by Company or such Subsidiary is not greater than the aggregate fair market value (as determined in good faith by the Board of Directors of Company), of the like property or assets received by Company or such Subsidiary in such exchange and (ii) such aggregate fair market value of all property or assets transferred by Company and any of its Subsidiaries in connection with such exchanges shall not exceed $5,000,000; and
(v) Company and its Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or all of the stock or other evidence of beneficial ownership of, of any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitionsnursery business, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all peat or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company potting soil or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange mix business or otherwise dispose of assets in Asset Sale transactionsbusinesses reasonably related thereto; provided that (a) any Asset Sale the contemplated acquisition is made for neither contested -------- nor hostile nor opposed by the fair market value board of such assets and for at least eighty-five percent (85%) cash, and directors of the targeted company or business; (b) no Event of Default or Potential Event of Default has occurred and is then continuing; (c) after giving effect (including, without limitation, any limitation on any assumed or acquired Indebtedness) to such acquisition and Indebtedness incurred in connection therewith, Company is in pro forma compliance with its financial covenants; provided that for purposes of calculating the Net Cash Proceeds -------- Consolidated Leverage Ratio, the aggregate earnings attributable to acquired businesses or companies whose financials are unreviewed and unaudited shall not exceed 20% of each Consolidated EBITDA before giving effect to the consolidation with such Asset Sale are applied in conformity with subsection 2.4B(ii)(a)acquired businesses or companies and that Company delivers to Agent and Lenders prior to the consummation of such acquisition a Compliance Certificate demonstrating such pro forma covenant compliance; and, provided, further, -------- ------- that Company shall be deemed to be in pro forma covenant compliance with respect to the Consolidated Leverage Ratio with regard to its acquisition of Willow Creek Greenhouses Inc.; (d) the provisions of subsections 6.9 and 6.10 of this Agreement are complied with with respect to any Subsidiary so acquired; (e) Company obtains Agent's and Requisite Lenders' consents to any acquisition or series of related acquisitions in excess of $25,000,000 and, to the extent such consent is required, shall have delivered to Agent and Lenders, on a timely basis prior to the consummation of such acquisition, such historical and pro forma projected financial statements (which projected financial statements shall be prepared on a quarterly basis for the 118 succeeding twelve-month period and on an annual basis for the period commencing after such twelve-month period and concluding on the date of the final maturity of the Loans), sources and uses analysis, pro forma covenant calculations and such other due diligence information as may be reasonably requested by Agent or Lenders. Subject to completion of such due diligence to the reasonable satisfaction of Agent and Requisite Lenders, Agent and Requisite Lenders hereby agree to approve or disapprove acquisitions as soon as reasonably practicable but in any event within ten Business Days of receipt of such information; and (f) Company and its Subsidiaries may will not sell, exchange incur or otherwise dispose of all assume in connection with any such contemplated acquisition any material environmental or a substantial portion of any Division without the prior written consent of Requisite Lendersother material contingent liability.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Loan Parties shall not, each and shall not permit any of Company and its Consolidated their Subsidiaries will not to, alter the corporate, capital or legal structure of the Loan Parties or any of their Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any PersonPerson or any division or line of business of any Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of any Loan Party's or any of its Subsidiary's business), except:
(i) any Loan Party or Subsidiary of Company a Loan Party may be merged or consolidated with or into Company a Loan Party or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company a Loan Party or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) if the continuingBorrower is a party to such merger, the Borrower will be the surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of if a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation Loan Party is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior a party to such merger or consolidation) shall not merge, a Loan Party will be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligationscorporation;
(ii) Company The Loan Parties and its Consolidated their Subsidiaries may acquire all make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) The Loan Parties and their Subsidiaries may dispose of obsolete, worn out or substantially all surplus property in the ordinary course of business, property ;
(iv) The Loan Parties and their Subsidiaries may sell or fixed otherwise dispose of (i) inventory sold in the ordinary course of business and (ii) any such other assets of, or stock or other evidence of beneficial ownership of, in an aggregate amount not to exceed $200,000 in any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS")fiscal year; provided that the purchase price consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(including all assumed liabilitiesv) paid with respect to Acquisitions made on The Loan Parties and their Subsidiaries may sell or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 discount, in each case without recourse and in the aggregate for all such Acquisitions; provided that in calculating the purchase price ordinary course of such Acquisitionsbusiness, the purchase price attributable to any assets acquired Accounts arising in the IT Exchange ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(vi) The Loan Parties and their Subsidiaries may be excluded; provided further that grant leases and subleases to other Persons in the extent that Company pays all ordinary course of business not materially interfering with the conduct of the business of Holdings, Borrower or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11their Subsidiaries; and
(iiivii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets The Loan Parties and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its their Subsidiaries may not sell, exchange make or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lendersenter into Permitted Acquisitions.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its make Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made Capital Expenditures permitted under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions7.8; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and116 124
(iii) Company and its Subsidiaries may selldispose of obsolete, exchange worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(v) Merger Sub and Target may consummate the Merger in accordance with the terms of the Merger Agreement;
(vi) Company and its Subsidiaries may acquire, whether by purchase, issuance of stock or other equity or debt securities, merger, reorganization or any other method, any Person, substantially all of the assets of any Person, or any division or line of business of any Person (any such Person, assets, division or line of business being an "ACQUIRED BUSINESS" and any such acquisition permitted hereunder being a "PERMITTED ACQUISITION"), PROVIDED that each of the following conditions is satisfied:
(a) any Asset Sale the Acquired Business is engaged in a line of business that Company and its Subsidiaries are permitted to engage in under subsection 7.14;
(b) the Acquired Business becomes a wholly-owned Domestic Subsidiary of Company or is acquired by a wholly-owned Domestic Subsidiary of Company in such Permitted Acquisition;
(c) the aggregate amount of consideration consisting of Cash paid by Company and its Subsidiaries and the principal amount of Acquisition Indebtedness incurred or assumed by Company and its Subsidiaries for all Permitted Acquisitions made after the Closing Date shall not exceed $15,000,000; and the aggregate amount of all consideration paid by Company and its Subsidiaries for all Permitted Acquisitions (including the fair market value of all non-Cash consideration) made after the Closing Date shall not exceed $35,000,000;
(d) the excess of the Revolving Loan Commitments over the Total Utilization of Revolving Loan Commitments immediately after giving effect to such assets Permitted Acquisition will be not less than $10,000,000;
(e) concurrently with the consummation of such Permitted Acquisition, Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 with respect to such Permitted Acquisition; and
(f) prior to the consummation of any such Permitted Acquisition having a purchase price in excess of $5,000,000, Company shall deliver to Administrative Agent an Officers' Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement shall then exist or shall occur as a result of such Permitted Acquisition, (2) demonstrating that after giving effect 117 125 to such Permitted Acquisition and to all Indebtedness to be incurred or assumed or repaid in connection with or as consideration for at least eightysuch Permitted Acquisition, Company will be in Pro Forma Financial Covenant Compliance as of the last day of the four Fiscal Quarter period most recently ended prior to the date of the proposed Permitted Acquisition for which the relevant financial information is available, (3) delivering a copy, prepared in conformity with GAAP (subject to year-five percent end adjustments and the absence of footnotes), of (85%i) cashfinancial statements of the Person or business so acquired for the immediately preceding four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in the immediately preceding clause and (ii) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period of such Person, and (b4) revised financial projections (in a form substantially consistent with previously provided projections) for Company pro forma for any proposed Permitted Acquisition in excess of $5,000,000 for the Net Cash Proceeds of each such Asset Sale are applied in conformity with succeeding four Fiscal Quarters;
(vii) subject to subsection 2.4B(ii)(a); and7.13, provided, further, that Company and its Subsidiaries may make Asset Sales in each Fiscal Year of assets having a fair market value not sellin excess of $1,000,000 in such Fiscal Year; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y) the sole consideration received shall be cash; and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(viii) Company and its Subsidiaries may make Asset Sales in each year consisting of magazine titles and the assets associated therewith; PROVIDED that (x) the consideration received in exchange for such magazine titles and associated assets consists solely of one or more other magazine titles and associated assets, exchange (y) the total revenue attributable to any such magazine title proposed to be sold does not exceed $500,000 for the 12 month period preceding the date of sale, and (z) no more than three magazine titles may be sold in any Fiscal Year pursuant to this clause (viii);
(ix) Company and its Subsidiaries may sell the capital stock or otherwise dispose assets of all Curtxx & Xeasx/Xxxeco, the Penton Press division of Company, and/or the Feather Fine division of Curtxx & Xeasx/Xxxeco Inc.; PROVIDED that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y) not less than 90% of the consideration therefor shall be cash; and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a). Nothing in this subsection 7.7 shall prohibit the sale, assignment, transfer, conveyance or a substantial portion other disposition of any Division without the prior written consent Margin Stock owned by Company or any of Requisite Lenders.its Subsidiaries at its fair value (as determined in good faith by its Board of Directors) so long as proceeds are held as Cash or Cash Equivalents. 118 126
Appears in 1 contract
Samples: Credit Agreement (Penton Media Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Borrower shall not, each nor shall it permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of the Borrower or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself or any Subsidiary (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactionstransactions (or apply to the Bankruptcy Court for authority to do so), all or any part of its or any of its Subsidiaries business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(ia) any Subsidiary of Company may be merged direct or consolidated with or into Company or any indirect wholly-owned Subsidiary of Companythe Borrower may be merged with or into the Borrower, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or a any wholly-owned Subsidiary of Companythat is a Credit Party; provided that, in the case of such a merger merger, the Borrower or consolidation, Company or such wholly-owned any Subsidiary that is a Credit Party shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and ;
(b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared Borrower and its Subsidiaries may make Capital Expenditures to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall extent not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligationsprohibited by this Agreement;
(iic) Company the Borrower and its Consolidated Subsidiaries may acquire all dispose of obsolete, worn out or substantially all surplus assets or property in the ordinary course of business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by ;
(d) the Company Borrower and its Consolidated Subsidiaries (such asset may sell or stock acquisitions being herein collectively referred to as "ACQUISITIONS")otherwise dispose of assets or property in transactions that do not constitute Asset Sales; provided that the purchase price consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(including all assumed liabilitiese) paid the Borrower and it Subsidiaries may sell Accounts in accordance with respect Section 8.7;
(f) the Borrower and its Subsidiaries may transfer assets to Acquisitions made on or after other Subsidiaries in accordance with Section 8.21;
(g) the Closing Date plus the amount Borrower and its Subsidiaries may conduct (i) other Asset Sales consisting of all Investments made under subsection 6.3(vii) does assets with a fair market value not exceed in excess of $5,000,000 10,000, for any single Asset Sale, and $50,000 in the aggregate for all such AcquisitionsAsset Sales during the term of this Agreement and (ii) other Asset Sales that are approved by the Agent in its sole discretion consisting of assets with a fair market value not in excess of $10,000,000 for all such Asset Sales during the term of this Agreement; provided that that, in calculating each case, (x) the purchase price of consideration received for such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for an amount at least equal to the fair market value thereof and shall consist solely of such assets and for at least eighty-five percent (85%) cash, cash or Cash Equivalents and (by) the Net Cash Proceeds proceeds of each any such Asset Sale are shall be applied in conformity with subsection 2.4B(ii)(aas required by Section 2.4(d)(i); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lenders.
Appears in 1 contract
Samples: Post Petition Credit Agreement (Dan River Inc /Ga/)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, partnership, capital or legal structure of Borrower or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-leasesublease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
: (i) any Subsidiary of Company Borrower may be merged or consolidated with or into Company Borrower or any wholly-owned Subsidiary of CompanyBorrower, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Subsidiary of CompanyBorrower; provided that, in the case of such a merger or consolidationmerger, Company Borrower or such wholly-owned Subsidiary shall be the continuing or surviving corporationPerson; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company Borrower and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS")make Capital Expenditures permitted under Section 7.8; provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company Borrower and its Subsidiaries may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that (a) any Asset Sale is made the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent thereof; (85%iv) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company Borrower and its Subsidiaries may, in the ordinary course of business, sell for cash, equipment that is obsolete or in need of replacement and no longer used or useful in its business; (v) Borrower may not sell, exchange or otherwise dispose of all personal property to customers or a substantial portion potential customers in connection with promotions in the ordinary course of any Division without business substantially consistent with the prior written consent practice of Requisite Lenders.other gaming institutions in connection with their gaming operations in the State of Nevada; and (vi) Borrower and its wholly-owned Subsidiaries may make Investments permitted by Section 7.3(ii). 7.8
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject Holdings shall not, and shall not permit any of its Subsidiaries to subsection 5.2, each of Company and its Consolidated Subsidiaries will not enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-leaseother than in the ordinary course of business, transfer or otherwise dispose ofof (other than pursuant to a lease entered into in the ordinary course of business), in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any other Person or any division or line of business of any other Person, except:
(i) any Subsidiary of Company and Transitory Subsidiaries may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationinvolving -------- Company, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, and in the case of any other such a merger or consolidation or disposition of a majority of the stock of a merger, such Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation Guarantor shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of be the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligationscorporation;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its make Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 Capital Expenditures in the aggregate for all such Acquisitions; provided that in calculating the purchase price ordinary course of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; andbusiness;
(iii) Company and its Subsidiaries may selldispose of obsolete, exchange uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that (a) any Asset Sale is made -------- the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent thereof;
(85%v) cashsubject to subsection 7.12, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its Subsidiaries may make Asset Sales of assets having an aggregate fair market value not in excess of $10,000,000; provided that (y) the consideration received for such -------- assets shall be in an amount at least equal to the fair market value thereof and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vi) Company and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; provided that the aggregate amount of such accounts receivable -------- sold pursuant to this clause (vi) shall not exceed in any Fiscal Year 10% of the accounts receivable of Company and its Subsidiaries recorded for the preceding Fiscal Year;
(vii) Company and its Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by Company or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Company or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(viii) Company and its Subsidiaries may dispose of any Excluded Subsidiary or its assets;
(ix) Company and its Subsidiaries and Transitory Subsidiaries may sell non-core businesses acquired in connection with Permitted Acquisitions;
(x) Holdings, Company and its Subsidiaries and Transitory Subsidiaries may sell or dispose of Cash Equivalents and other investments permitted under subsection 7.3;
(xi) Holdings, Company and its Subsidiaries and Transitory Subsidiaries may enter into letters of intent and purchase agreements with respect to proposed acquisitions so long as (a) any xxxx xxxxxxx money deposits required to be made by Holdings, the Company or its Subsidiaries and Transitory Subsidiaries in connection therewith are funded solely with new cash equity contributions to the Company and Transitory Subsidiaries, (b) there shall be no recourse against Holdings, the Company or any of its Subsidiaries and Transitory Subsidiaries in respect of such letters of intent or purchase agreements other than against any such xxxx xxxxxxx money deposits and (c) none of the Holdings, the Company nor any of its Subsidiaries and Transitory Subsidiaries shall be permitted to consummate any acquisition relating to such letter of intent or purchase agreement without the prior written consent of the Administrative Agent which consent may be withheld in Administrative Agent's reasonable discretion, except no consent shall be required with respect to acquisitions made pursuant to subdivision (xiii) of this Section 7.7);
(xii) Holdings and its Subsidiaries may convert (whether by merger, acquisition or otherwise, including the establishment of new corporations to do so) from limited partnerships to "C" corporations or limited liability companies so long as the security interests granted to the Administrative Agent for the benefit of the Lenders pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such conversion) and Holdings and Company comply with the provisions of subsection 10.22; 140
(xiii) Company or any Permitted Subsidiary of Company or Transitory Subsidiaries may make other acquisitions of assets and businesses (including acquisitions of the capital stock or other equity interests of another Person whether by merger or purchase) or Holdings may acquire the capital stock of a Transitory Subsidiary provided that: --------
(a) immediately prior to and after giving effect to any such acquisition, Holdings, Company and its Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a Permitted Subsidiary of Company or a Transitory Subsidiary or (B) such Person is merged with and into Company or a Permitted Subsidiary of Company or a Transitory Subsidiary(with Company or such Permitted Subsidiary or Transitory Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such acquisition shall consist of cash, Common Units, Qualified Preferred Units or Permitted Seller Notes;
(1) Company shall be in compliance, on a pro forma basis giving effect to the proposed acquisition, with the covenants set forth in subsection 7.6 hereof, and (2) no Event of Default or Potential Event of Default shall have occurred and be continuing at the time of such acquisition or shall be caused thereby; and Company shall have delivered to Administrative Agent an Officer's Certificate (together with supporting information therefor), in form and substance reasonably satisfactory to Administrative Agent, certifying as to the foregoing;
(e) with respect to any assets acquired pursuant to such acquisition by a Loan Party such Loan Party shall have taken all steps necessary to establish and create a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to, and to the extent required by, this Agreement and the Collateral Documents;
(f) the aggregate Acquisition Consideration paid by Company or any such Subsidiary in any such acquisition does not exceed $50,000,000; and
(g) Administrative Agent shall have received the following information with regard to the Permitted Acquisition at least ten (10) Business Days (or at such later date as such information first becomes available) prior to the consummation thereof: (y) summary information prepared by Company describing the nature of the business or Person to be acquired, the current draft of the acquisition agreement and historical financial statements with respect to the business or Person to be acquired as delivered to the 141 Company; and (z) pro forma financial statements for Company and its Subsidiaries for the immediately preceding and following four-fiscal quarter period demonstrating compliance on a pro forma basis with the financial covenants applicable during such periods pursuant to subsection 7.6 and adjustments made to the Borrowing Base Amount in accordance with Schedule 1.1(i). ---------------
(xiv) any Permitted Foreign Subsidiary of Company may be merged with or into any wholly-owned Permitted Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly-owned Permitted Foreign Subsidiary; provided that (i) in the case of such a -------- merger, such wholly-owned Permitted Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly-owned Permitted Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(xv) Holdings or its Subsidiaries may sell or issue equity interests of the Company or any of its Subsidiaries to Holdings, the General Partner or any of their Subsidiaries;
(xvi) Company and its Permitted Subsidiaries may make Investments pursuant to subsection 7.3;
(xvii) Holdings may issue Common Units, the Preferred Units, the Series B Preferred Units and Qualified Preferred Units to the extent not otherwise prohibited under the provisions of this Agreement;
(xviii) Holdings, Company and its Permitted Subsidiaries may consummate the 1999 Acquisitions; and
(xix) Holdings and Transitory Subsidiaries may sell, exchange transfer or otherwise dispose of all or any part of its business, property or assets to Company or a substantial portion of any Division without the prior written consent of Requisite LendersPermitted Subsidiary (other than a Transitory Subsidiary).
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Each Borrower shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sub-lessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or 133 acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Company, or may be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of Company; provided that, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (as reasonably determined by the Board of Directors of Company);
(iv) subject to subsection 7.13, Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $1,000,000; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (as reasonably determined by the Board of Directors of Company); (y) the sole consideration received shall be cash; and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4C(iii)(f); and
(v) Company and its Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or all of the stock or other evidence of beneficial ownership of, of any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitionsnursery business, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all peat or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company potting soil or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange mix business or otherwise dispose of assets in Asset Sale transactionsbusinesses reasonably related thereto; provided that (ai) any Asset Sale no Event of Default or Potential Event of Default has occurred and is then continuing; (ii) the aggregate amount of Loans made to effect such acquisition will not exceed an amount equal to the Consolidated EBITDA for the fair market value most recent 12 consecutive month period of the businesses acquired multiplied by four; (iii) Holdings will contribute cash equity to Company in an amount equal to at least 20% of the aggregate purchase price to be paid for such acquisition; (iv) after giving effect (including, without limitation, any limitation on any assumed or acquired Indebtedness) to such acquisition and Indebtedness incurred in connection therewith, Company is in pro forma compliance with its financial covenants; (v) on or prior to the consummation of the acquisition, Company shall cause to be executed and delivered all such Loan Documents, and to have been taken all such other actions (including without limitation the delivery of any appraisals or environmental reports), in each case as may be required pursuant to subsections 6.11, 6.12 or 6.13 with respect to the Persons or assets so acquired and/or to update the schedules to this Agreement and to provide a collateral audit of 134 the Inventory and Accounts Receivables of the Person or assets so acquired; and (vi) Company obtains Agent's and Requisite Lenders' consents to any acquisition or series of related acquisitions in excess of $10,000,000 and, to the extent such consent is required, shall have delivered to Agent and Lenders on a timely basis such historical and pro forma financial statements, sources and uses analysis, pro forma covenant calculations and such other due diligence information as may be reasonably requested by Agent or Lenders. Agent and Requisite Lenders hereby agree to approve or disapprove acquisitions as soon as reasonably practicable but in any event within 10 Business Days of receipt of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lendersinformation.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business and any assets acquired in connection with the acquisition of another Person or a division or line of business of such Person which the Company reasonably determines are surplus assets;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(v) subject to subsection 7.12, Company and its Subsidiaries may (x) sell the Xxxxxxx, New York, Melbourne, Australia and Montreal, Quebec real estate and (y) make other Asset Sales of assets having a fair market value not in excess of $1,000,000 per year; provided that
(1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (2) the consideration received shall be at least 85% cash; and (3) no later than the first Business Day following the date of receipt by Company or any of its Subsidiaries of any Net Asset Sale Proceeds of such Asset Sale, Company shall deliver to Agent an Officers' Certificate, satisfactory in form and substance to Administrative Agent, demonstrating the derivation of the Net Asset Sale Proceeds of such Asset Sale from the gross sales price received in connection therewith;
(vi) In addition to the Anagram Acquisition (which is addressed in subsection 7.7 (vii)), Company and its Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged or any division or line of business of any Person that is in businesses substantially similar to those conducted by the same line of business as Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "PERMITTED BUSINESS ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 that, in the aggregate for all such Acquisitions; provided case of any Permitted Business Acquisition that is financed in calculating the purchase price whole or in part with any consideration other than (a) common stock of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that Company transferred to the extent that Company pays all or any portion seller, (b) proceeds of the purchase price for an Acquisition through the issuance additional cash common equity contributions by GSII to Company, and/or (c) proceeds of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining additional subordinated indebtedness incurred in compliance with the provisions of this subsection 6.7(ii7.1(viii); , (1) Company and provided further that its Subsidiaries are in compliance with the financial covenants under subsection 7.6 on a Pro Forma Basis for the four Fiscal Quarters most recently completed prior to the consummation of such Permitted Business Acquisition and (2) the Consolidated Senior Leverage Ratio on a Pro Forma Basis for the four Fiscal Quarters most recently completed prior to the consummation of such Permitted Business Acquisition shall not exceed (A) for any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts four-Fiscal Quarter period ending on or before the last day of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sellFiscal Year 1999, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash4.00:1.00, and (b) the Net Cash Proceeds of each for any such Asset Sale are applied in conformity with subsection 2.4B(ii)(a)four-Fiscal Quarter period ending thereafter, 3.50:1.00; and, provided, further, that
(vii) Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without acquire the prior written consent of Requisite LendersAnagram Shares pursuant to the Anagram Acquisition Agreement on the Restatement Effective Date.
Appears in 1 contract
Samples: Revolving Loan Credit Agreement (Amscan Holdings Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of the Borrower or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock Capital Stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(a) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (i) any Guarantor or other Subsidiary of Company the Borrower may be merged or consolidated with or into Company the Borrower or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or any wholly-owned Subsidiary of CompanyGuarantor and (ii) in connection with any Permitted Acquisition, the Borrower or any Guarantor may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided thatthat (A) if such merger involves the Borrower, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary Borrower shall be the continuing or surviving corporation; provided further that, in the case of corporation and (B) if such a merger or consolidation or disposition of involves a majority of the stock of a Subsidiary or substantially all of the businesswholly-owned Guarantor, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation wholly-owned Guarantor shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of be the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the or such continuing or surviving corporation is liable as compared shall be a wholly-owned Subsidiary of the Borrower and shall comply with Sections 5.9, 5.10 and 5.11 hereof;
(b) the Borrower and its Subsidiaries may sell inventory in the ordinary course of business and dispose of obsolete, worn out or surplus property in the ordinary course of business;
(c) subject to Section 6.11, the Borrower and its Subsidiaries may make asset sales not otherwise permitted by this Section 6.7 of (i) assets having a fair market value not in excess of $15,000,000 in the aggregate in any four Fiscal Quarter period, or $75,000,000 in the aggregate during the term of this Credit Agreement; provided that properties acquired in Permitted Acquisitions shall be excluded from the foregoing baskets to the amount of intercompany Indebtedness for which extent the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case sale of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which properties is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, contemplated at the time of consummation of such mergerPermitted Acquisitions, consolidation or transfer, be pledged to secure the Obligations;
and (ii) Company sale and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted leasebacks permitted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactionsSection 6.8; provided that (aA) any Asset Sale is made the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for thereof, (B) at least eighty-five percent (85%) cash, 80% of the consideration received shall be Cash and (bC) the Net Cash Proceeds of such asset sales shall be applied as required by Section 2.8(b)(ii);
(d) the Borrower or any Subsidiary of the Borrower may make acquisitions (each a “Permitted Acquisition”) of assets and businesses (including acquisitions of the Capital Stock or other equity interests of another Person); provided that:
(i) immediately prior to and after giving effect to any such Asset Sale acquisition, the Borrower and its Subsidiaries shall be in compliance with the provisions of Section 6.12 hereof;
(ii) such Person becomes a Subsidiary of the Borrower, or such business, property or other assets are applied acquired by the Borrower or a Subsidiary of the Borrower;
(iii) prior to the consummation of such acquisition, the Borrower shall deliver to the Administrative Agent (A) an Officers’ Certificate (1) certifying that no Default or Event of Default under this Agreement shall then exist or shall occur as a result of such acquisition and (2) demonstrating, in a manner consistent with past practices or otherwise acceptable to the Administrative Agent, that after giving effect to such acquisition and to all Indebtedness to be incurred or assumed or repaid in connection with or as consideration for such acquisition, that the Borrower would be in pro forma compliance with the financial covenants referred to in Section 6.6 for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed acquisition (and demonstrating, in a manner consistent with past practices or otherwise acceptable to the Administrative Agent, that the Consolidated Pro Forma Leverage Ratio would be at least 0.25 lower than the applicable covenant level set forth in Section 6.6(a) after giving effect to such acquisition on a pro forma basis); provided that if such acquisition is consummated during the first 45 days after the end of a Fiscal Quarter, then such pro forma compliance shall be determined for the four consecutive Fiscal Quarter period ending on the last day of the penultimate Fiscal Quarter prior to the date of such acquisition, (B) a copy of all environmental reports obtained in connection with such acquisition and a copy of the principal documents (e.g., purchase agreement, merger agreement) related to such acquisition, (C) for any acquisition with total consideration in excess of $50,000,000, a copy, prepared in conformity with subsection 2.4B(ii)(aGAAP or otherwise acceptable to the Administrative Agent, of financial statements (audited financial statements to the extent available) of the Person or business so acquired for the immediately preceding four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in the preceding clause (A) (and, if an asset purchase, pro forma financial statements on a historical basis), (D) for any acquisition with total consideration in excess of $200,000,000, copies, prepared in conformity with GAAP or otherwise acceptable to the Administrative Agent, of audited financial statements of the Person or business so acquired for the most recent available Fiscal Year, and of unaudited financial statements prepared in a manner consistent with such Person’s most recent audited financial statements for the four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in the preceding clause (A) (and, if an asset purchase, pro forma financial statements on a historical basis); provided that, if audited financial statements are not available for a period exceeding two Fiscal Quarters following the date of the most recent audited financial statements provided for the Person or business so acquired, then the Borrower also will provide a due diligence report in form and substance acceptable to the Administrative Agent from a third party auditor acceptable to the Administrative Agent and (E) such other information as the Administrative Agent may reasonably request;
(iv) the Borrower shall, and shall cause its Subsidiaries to, comply with the requirements of Sections 5.9, 5.10 and 5.11 hereof with respect to such acquisitions;
(v) after giving effect to such acquisition, there shall be at least $20,000,000 of borrowing availability under the Revolving Committed Amount;
(vi) such acquisition is not a “hostile” acquisition and has been approved by the board of directors and/or shareholders of the Borrower and the Person that is the subject of the acquisition; and
(vii) with respect to any single acquisition (or series of related acquisitions) of 20 or more stores or any single acquisition (or series of related acquisitions) where the purchase price is equal to or greater than $10,000,000, such Person has EBITDA for the twelve month period ending as of the most recent fiscal quarter end of such Person prior to the acquisition date in an amount greater than $0, after giving effect to all adjustments to EBITDA permitted pursuant to Regulation S-X and any cost savings or synergies acceptable to the Administrative Agent; provided, furtherhowever, that Company to the extent an acquisition fails to meet the requirements set forth in Section 6.7(d)(iii)(A)(2) or Section 6.7(d)(v) above, but otherwise satisfies the other requirements set forth in this Section 6.7(d), the Borrower and its Subsidiaries may make such acquisition (each an “Additional Acquisition”) subject to the following conditions: (1) no more than 10 stores may be acquired in any Fiscal Year pursuant to Additional Acquisitions, (2) the total consideration paid for Additional Acquisitions in any Fiscal Year shall not sellexceed $10,000,000 in the aggregate, exchange (3) for purposes of this Credit Agreement, any such Additional Acquisition shall be treated as a capital expenditure rather than a Permitted Acquisition and shall be included in the calculation of Consolidated Capital Expenditures for the relevant period and (4) each such Additional Acquisition shall be subject to the approval of the Administrative Agent, not to be unreasonably withheld.
(e) the Borrower may amend its Certificate of Incorporation to create and issue classes or otherwise dispose series of preferred stock pursuant thereto; provided that any class or series of preferred stock issued under such authorized “blank check” preferred stock shall not be Disqualified Capital Stock;
(f) the Borrower may terminate any Hedging Agreement permitted pursuant to Section 6.3(h); and
(g) the Borrower and its Subsidiaries may make transfers of any of their properties or assets to another Person in transactions in which 80% of the consideration received by the transferor consists of properties or assets (other than Cash) that will be used in the business of the transferor; provided that (i) the aggregate fair market value (as determined in good faith by the board of directors of the Borrower) of the property or assets being transferred by the Borrower or such Subsidiary is not greater than the aggregate fair market value (as determined in good faith by the board of directors of the Borrower) of the property or assets received by the Borrower or such Subsidiary in such exchange, (ii) the aggregate fair market value (as determined in good faith by the board of directors of the Borrower) of all property or a substantial portion assets transferred by the Borrower and any of its Subsidiaries in connection with such exchanges in any Fiscal Year shall not exceed $20,000,000 and (iii) the terms of any Division without such transaction shall be reasonably satisfactory to the prior written consent of Requisite LendersAdministrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Pantry Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Holdings shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, including the creation or acquisition of any Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all a substantial portion of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
a. Alpha Beta may merge into Company with Company being the surviving corporation;
b. Company and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8 and Development Investments (ito the extent such Development Investments do not constitute Consolidated Capital Expenditures) permitted under subsection 7.3(vii);
c. Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration 131 received for such assets shall be in an amount at least equal to the fair market value thereof;
d. Company and its Subsidiaries may sell or otherwise dispose of damaged, worn-out or obsolete assets that are no longer necessary for the proper conduct of their respective business for fair market value in the ordinary course of business;
e. Company and its Subsidiaries may sell (a) furniture, fixtures and/or equipment acquired after December 14, 1994 and (b) grocery stores (including furniture, fixtures and equipment located therein and acquired after December 14, 1994) opened or acquired after December 14, 1994, in each case in connection with a concurrent lease-back of such furniture, fixtures and/or equipment and/or of such grocery stores to the extent such transactions are permitted under subsection 7.10 and Agent shall release any security interests in favor of Agent for the benefit of Lenders in such furniture, fixtures and/or equipment and/or such grocery stores;
(a) Company and its Subsidiaries may sell up to eight grocery stores in any Fiscal Year, plus a number of stores equal to the difference between eight and the number of stores sold under this clause (vi) in the immediately preceding Fiscal Year, which stores are no longer useful to the businesses of Company and its Subsidiaries; and (B) with the approval of Agent, Company and its Subsidiaries may terminate the leases on up to six (6) grocery stores or other facilities in any Fiscal Year, which grocery stores or other facilities are no longer useful to the businesses of Company and its Subsidiaries and Agent shall release any security interests in favor of Agent for the benefit of Lenders in Company's or its Subsidiaries' leasehold interests in such stores or other facilities and any personal property remaining on any such premises;
g. Company and its Subsidiaries may make any of the Planned Dispositions; provided that, in each case, the consideration received for each of such stores is in an amount at least equal to the fair market value thereof;
h. Company or any of its Subsidiaries may sell any class of stock of Certified Grocers of California, Ltd., a California corporation ("Certified") owned by it pursuant to a redemption of such stock by Certified;
i. Company and its Subsidiaries may lease or sublease any of their respective real or personal property in the ordinary course of business;
(a) any wholly-owned Subsidiary of Company may (other than Cala and its Subsidiaries, and Fallxx'x) xxy be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyCompany (other than Bell Xxxkets, or be liquidated, wound up or dissolvedInc.), or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyCompany (other than Bell Xxxkets, Inc.); provided that, in the case of such a merger or consolidationconsolidation involving Company, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, corporation and in the case of such a merger or consolidation or disposition involving two wholly-owned Subsidiaries of a majority of Company, the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, 132 surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of be a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared party to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) Guaranty and its capital stock shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure Secured Party (as defined in the ObligationsPledge Agreement) pursuant to the Pledge Agreement; and (B) the corporate existence of those Subsidiaries of Holdings identified as inactive on Schedule 5.1 annexed hereto may be terminated to the extent permitted under subsection 6.2;
(ii) k. Company and its Consolidated Subsidiaries may acquire all or substantially all make Asset Sales of the business, property or fixed assets of, or stock or other evidence Selected Assets pursuant to this subsection 7.7(xi) through the end of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS")Fiscal Year 1998; provided that the purchase price (including all assumed liabilities) paid with respect consideration received for such assets shall be in an amount at least equal to Acquisitions made on the fair market value thereof, provided that for any individual transaction or after series of related transactions for which the Closing Date plus aggregate consideration equals or exceeds $25,000,000, Company shall provide to Agent a fairness opinion from an investment bank acceptable to Agent that the amount of all Investments made under the consideration is not less than the fair market value of such assets;
l. subject to subsection 6.3(vii) does 7.13, Company and its Subsidiaries may make Asset Sales of assets having an aggregate fair market value not exceed in excess of $5,000,000 in the aggregate for all such AcquisitionsAsset Sales; provided that in calculating the purchase price of consideration received for such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for an amount at least equal to the fair market value thereof; and
m. so long as no Event of Default or Potential Event of Default shall have occurred and be continuing at the time of such assets and for at least eighty-five percent (85%) cashincurrence or sale, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its Subsidiaries may not sellincur Non-Recourse Indebtedness with respect to Planned Improvement Properties to the extent permitted under subsection 7.1(xiv) and may sell and concurrently lease-back Planned Improvement Properties to the extent permitted under clause (b) of subsection 7.10 and Agent shall release any Liens in favor of Agent for the benefit of Lenders on such Planned Improvement Properties, exchange including any stores located thereon and any equipment or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lendersfixtures located in such stores.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) Merger Sub may be merged into Milgray, any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Company108 116 Guarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company or such wholly-wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; provided further that on and after the Closing Date Company shall not sell, and shall not permit Merger Sub to sell, any shares of Milgray Common Stock unless (i) such sale is for cash in an amount at least equal to the fair market value of such shares of Milgray Common Stock at the time of such sale, and (ii) after giving effect to such sale, Merger Sub shall continue to own not less than 66-2/3% of the outstanding shares of Milgray Common Stock on a fully-diluted basis;
(v) Company and its Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS")any division or line of business of any Person; provided that that, except for the purchase price acquisition of Milgray as provided for herein, (a) the aggregate amount of cash and noncash consideration (including all any Indebtedness assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries but excluding any equity Securities issued by Company in connection with such transaction) paid by Company and its Subsidiaries shall not exceed $25,000,000 for any single such Acquisitions for purposes acquisition or related series of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sellacquisitions, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds aggregate amount of each cash and noncash consideration (including any Indebtedness assumed by Company or its Subsidiaries but excluding any equity Securities issued by Company in connection with such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that transaction) paid by Company and its Subsidiaries may during the period beginning on the Closing Date and continuing thereafter for all such acquisitions shall not sellexceed $50,000,000 (provided that the aggregate amount of cash and noncash consideration (including any Indebtedness assumed by Company or its Subsidiaries but excluding any equity Securities issued by Company in connection with such transaction) paid by Company and its Subsidiaries during the period beginning on the Closing Date and ending on the date that is 365 calendar days subsequent to the Closing Date shall not exceed $20,000,000), exchange (c) after giving effect to each such acquisition, Company shall be in compliance with all provisions of subsection 7.6 on a pro forma basis, 109 117 and (d) any business acquired in any such acquisition shall not be materially different from the lines of business engaged in by Company or otherwise dispose its Subsidiaries as of all or a substantial portion of any Division without the prior written consent of Requisite LendersClosing Date.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-leasesublease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquiredhereafter acquired (other than in the ordinary course of business), or acquire by purchase or otherwise all or substantially all any portion of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any PersonPerson or any division or line of business of any Person (other than in the ordinary course of business), except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned other Subsidiary of Company, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-other wholly owned Subsidiary of Company; provided that, in the case of such a merger or consolidationmerger, Company or such wholly--------- wholly owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that -------- the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(iii) Company and its Subsidiaries may lease stores owned or leased by the Company or Subsidiaries to franchisees; provided that the rentals -------- received under any such lease reflect the fair market value of such property;
(iv) subject to subsection 7.13, Company and its Subsidiaries may sell or dispose of (y) the Far West Division and (z) may make other Asset Sales (other than Specified Asset Sales) having an aggregate fair market value not in excess of $10,000,000; provided that (a) any the consideration -------- received for each such Asset Sale is made for shall 101 be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent (85%) cash, and thereof; (b) the Net Cash Proceeds of consideration for each such Asset Sale are (other than the Far West Division) is at least 75% Cash, and the balance is promissory notes payable to Company or its Subsidiaries; and (c) the proceeds of such Asset Sales shall be applied in conformity with as required by subsection 2.4B(ii)(a2.4B(iii)(a); and, provided, further, that ;
(v) Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lendersmake Investments permitted pursuant to subsection 7.3;
(vi) Company and its Subsidiaries may make Permitted Acquisitions; and
(vii) Company and its Subsidiaries may make Specified Asset Sales.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate or legal structure of Borrower or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Any Subsidiary of Company Borrower (other than Oakley Europe) may be merged or consolidated with or into Company Borrower or any whollyWholly-owned Owned Subsidiary of CompanyBorrower or Barter (provided that the Borrower owns at least 95% of all equity interests in Barter), or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any whollyWholly-owned Owned Subsidiary of CompanyBorrower or Barter (provided that the Borrower owns at least 95% of all equity interests in Barter); provided that, in the case of such a merger merger, Borrower, such Wholly-Owned Subsidiary or consolidation, Company or such wholly-owned Subsidiary Barter shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company Borrower and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company make Investments permitted under Section 7.3;
(iii) Borrower and its Consolidated Wholly-Owned Subsidiaries may receive contributions of assets and property from their respective shareholders;
(such asset iv) Borrower and its Subsidiaries may make Capital Expenditures;
(v) Borrower and its Subsidiaries may sell or stock acquisitions being herein collectively referred to as "ACQUISITIONS")otherwise dispose of assets in transactions that do not constitute Asset Sales, including, without limitation, sales of inventory and obsolete equipment in the ordinary course of business; provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the consideration received for such assets shall be in an amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that at least equal to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the fair market value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; andthereof;
(iiivi) Company Borrower and its Subsidiaries may sell, exchange transfer or otherwise dispose of assets in Asset Sale transactions; Sales provided that (a) any Asset Sale is made for the fair market value of assets so sold, transferred or otherwise disposed of by Borrower and its Subsidiaries (exclusive of assets lost or damaged as the result of any accidental event and any assets sold in a sale and lease-back transaction permitted under Section 7.7), determined without duplication, is not in excess of $5,000,000 in any year; provided that (y) the consideration received for such assets and for (excluding any lost or damaged assets) shall be in an amount at least eighty-five percent (85%) cash, equal to the fair market value thereof; and (bz) 75% of the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a)consideration received shall be cash; and, provided, further, that Company
(vii) Borrower and its Subsidiaries may make Permitted Acquisitions. Notwithstanding the foregoing, clauses (i) through (vii) above shall not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lendersapply to Oakley Denmark and Oakley Holding.
Appears in 1 contract
Samples: Credit Agreement (Oakley Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject The Borrowers shall not, and shall not permit any of their Restricted Subsidiaries to, alter the corporate, capital or legal structure (except with respect to subsection 5.2changes in capital structure to the extent a Change of Control does not occur as a result thereof) of any Borrower, each or any of Company and its Consolidated Subsidiaries will not Restricted Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquiredhereafter acquired (other than inventory in the ordinary course of business), or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) as permitted under the terms of this Agreement or any other Loan Document;
(ii) the Borrowers and their Restricted Subsidiaries may dispose of obsolete, worn out or surplus assets or assets no longer used or useful in the business of the Borrowers and their Restricted Subsidiaries in each case to the extent in the ordinary course of business, provided that either (i) such disposal does not materially adversely affect the value of the Collateral or (ii) prior to or promptly following such disposal any such property shall be replaced with other property of substantially equal utility and a 128 value at least substantially equal to that of the replaced property when first acquired and free from any Liens other than Permitted Liens and by such removal and replacement Borrowers and their Restricted Subsidiaries shall be deemed to have subjected such replacement property to the Lien of the Collateral Documents in favor of Lenders, as applicable;
(iii) the Borrowers and their Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(iv) the Borrowers and their Restricted Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $15,000,000; PROVIDED in each case that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof in the judgment of the Board of Directors of LVSI; (2) at least 75% of the consideration received shall be cash; and (3) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(v) the Borrowers and their Restricted Subsidiaries may have an Event of Loss;
(vi) the Restricted Subsidiaries may issue equity Securities to any Borrower or to any other Restricted Subsidiary or the Borrowers may issue equity Securities to each other;
(vii) the Borrowers and their Restricted Subsidiaries may (a) enter into any leases with respect to any space on or within the Existing Facility or the Phase II Project (including the Phase II Mall Lease (which Phase II Mall Lease may be terminated in accordance with its terms upon conveyance of Company the parcels covered thereby by LCR to Phase II Mall Subsidiary) and the Master Lease), (b) be a party to any lease in effect on the Closing Date, each of which lease of real property is set forth on SCHEDULE 7.7 hereto (as such lease may be amended, modified or supplemented in accordance with the terms of this Agreement) or (c) enter into any other lease in connection with the business of the Borrowers and their Restricted Subsidiaries as may be permitted under subsection 7.12;
(a) either Borrower may be merged with the other Borrower and any Subsidiary Guarantor may be merged with (or consolidated liquidated into) any other Subsidiary Guarantor or any Borrower and (b) any Non-Guarantor Restricted Subsidiary may be merged with (or into Company liquidated into) any Restricted Subsidiary;
(ix) Interface Holding and Interface Parent may be merged with (or liquidated into) LVSI with LVSI as the surviving entity;
(a) either Borrower may sell, lease or otherwise transfer assets to another Borrower or to a wholly-owned Subsidiary Guarantor and any wholly-owned Subsidiary of CompanyGuarantor may sell, or be liquidated, wound up or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred lease or otherwise disposed of, in one transaction or a series of transactions, transfer assets to Company or any other wholly-owned Subsidiary of Company; provided thatGuarantor or to a Borrower, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) the Borrowers and their Restricted Subsidiaries may sell, lease or otherwise transfer assets to Excluded Subsidiaries, Non-Guarantor Restricted Subsidiaries and Joint Ventures to the extent constituting Investments permitted by SECTION 7.3; 129
(xi) the Borrowers may dedicate space for the purpose of constructing (i) a mass transit system, (ii) a pedestrian bridge over Las Vegas Boulevard and Sands Avenue or similar structures to facilitate pedestrians or traffic, (iii) a right turn lane or other roadway dedication at or near the Resort Complex and (iv) other improvements reasonably requested by a Governmental Instrumentality; PROVIDED in each case that such dedication does not materially impair the use or operations of any portion of the Resort Complex;
(xii) the Borrowers may license trademarks and trade names in the ordinary course of business;
(xiii) the Borrowers and their Restricted Subsidiaries may transfer any assets leased or acquired with proceeds of a Non-Recourse Financing permitted under subsection 7.1 or any other financing permitted under subsection 7.1 and secured by a Permitted Lien to the lender providing such financing upon default, expiration or termination of such Non-Recourse Financing or other financing;
(xiv) the Borrowers may sell receivables for fair market value in the ordinary course of business;
(xv) either Borrower may merge into a holding company in order to create a new holding company parent, to change its place of organization or to convert LVSI into a "C corporation" or a limited liability company or partnership, and LVSI may convert into a limited liability company or partnership so long as it gives the Administrative Agent at least forty five days' notice (or thirty days' notice in the case of a merger conversion of LVSI into a limited liability company or consolidationpartnership) before it changes its name, identity or corporate structure and shall execute and deliver such instruments and documents as may reasonably be required by the net worth of the continuing or surviving corporation (calculated without giving effect Administrative Agent to any increase maintain a prior perfected security interest in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the ObligationsCollateral;
(iixvi) Company the Borrowers and its Consolidated their Restricted Subsidiaries may acquire all or substantially all incur Liens permitted under subsection 7.2;
(xvii) the business, property or fixed assets of, or stock or other evidence consummation of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company Refinancing and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after Transactions no later than the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such AcquisitionsDate, the purchase price attributable Reorganization and any other transactions contemplated thereby;
(xviii) [INTENTIONALLY OMITTED];
(xix) the Borrowers may transfer two certain parcels of land, one located on Sands Avenue and part of the Central Park West site and a second located along Las Vegas Boulevard to any assets acquired Clark County, in exchange for a parcel of land located at appxxxxxately the IT Exchange southeast corner of Las Vegas Boulevard and Sands Avenue;
(xx) the Borrowers may be excluded; provided further that a party to the extent that Company pays HVAC Ground Lease;
(xxi) LVSI may lease the casino within the Existing Facility from Venetian pursuant to the Casino Lease;
(xxii) LCR may convey all or any portion of the purchase price for an Acquisition through Phase II Mall Air Space to the issuance Phase II Mall Subsidiary upon its designation as a separate legal parcel;
(xxiii) the consummation of shares of Common Stock, the value one or more public offerings of the shares equity Securities of LVSC;
(xxiv) the transfer, exchange, subdivision or similar transaction with respect to the Central Park West Site with an adjoining, adjacent or nearby property owner under which a substantially equivalent amount (or more valuable parcel) of land as comprises the Central Part West Site would be obtained or retained, as the case may be, by a Borrower or a Restricted Subsidiary, which substantially equivalent (or more valuable) property to be obtained or retained by such Common Stock shall be deducted from Borrower or Restricted Subsidiary occupies a more favorable location with respect to the calculation Existing Site and the SECC; and
(xxv) LVSI may lease the casino within the Phase II Project pursuant to a lease with LCR in substantially the form of the purchase price payable by Company Casino Lease or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with as otherwise reasonably acceptable to the Administrative Agent. Notwithstanding the foregoing provisions of this subsection 6.7(ii); 7.7, clause (vii) shall be subject to the additional provisos that: (a) no Event of Default or Potential Event of Default shall exist and provided further that be continuing at the time of such transaction or lease or would occur after or as a result of entering into such transaction or lease (or immediately after any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts renewal or extension thereof at the option of the Xxxx-Xxxxxx Subsidiary Guaranty Borrowers or one of their Restricted Subsidiaries), (b) such transaction or lease will not materially interfere with, impair or detract from the operation of the business of the Borrowers and their Restricted Subsidiaries, (c) such transaction or lease is at a fair market rent or value (in light of other similar or comparable prevailing commercial transactions) and contains such other terms such that the Xxxx-Xxxxxx Subsidiary Pledge Agreement lease, taken as a whole, is commercially reasonable and fair to the Borrowers and their Restricted Subsidiaries in light of prevailing or comparable transactions in other casinos, hotels, hotel attractions or shopping venues or other applicable venues, (d) no gaming or casino operations (other than the operation of arcades and games for children) may be conducted on any space that is subject to such transaction or lease other than by the Borrowers and their Restricted Subsidiaries, (e) no lease may provide that the Borrowers or any of their Restricted Subsidiaries may subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee (except as provided in subsection 5.11; and
(iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cashCasino Level Mall Lease), and (bf) the Net Cash Proceeds tenant under such lease shall provide Administrative Agent on behalf of each the Lenders with a Subordination, Non-Disturbance and Attornment Agreement substantially in the form of EXHIBIT I hereto with such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); andchanges as Administrative Agent may approve, provided, further, that Company and its Subsidiaries may which approval shall not sell, exchange be unreasonably withheld or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lendersdelayed.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) Merger Sub may be merged into Target, any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-wholly owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-wholly owned Subsidiary of CompanyGuarantor; provided PROVIDED that, in the case of such a merger or consolidationmerger, Company or such wholly-wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; PROVIDED that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(v) from and after March 31, 1997, Company and its Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted or any division or line of business of any Person; PROVIDED that (a) the aggregate amount of cash and noncash consideration paid by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does shall not exceed $5,000,000 in for any single such acquisition, (b) the aggregate amount of cash and noncash consideration paid by the Company and its Subsidiaries in each calendar year for all such Acquisitions; provided that acquisitions shall not exceed $10,000,000 and (c) the aggregate amount of cash and noncash consideration paid by the Company and its Subsidiaries for each such acquisition shall not exceed an amount equal to 400% of the pro forma earnings before interest, depreciation, amortization and taxes (calculated in calculating the purchase price manner of Consolidated Adjusted EBITDA and giving effect on a pro forma basis to 121 restructuring arrangements to be effected on or prior to the acquisition date) for the business acquired for the most recently completed fiscal year of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11business; and
(iiivi) Company may sellsubject to subsection 7.13, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its Subsidiaries may make in each Fiscal Year Asset Sales of assets having a fair market value not sell, exchange or otherwise dispose in excess of all or a substantial portion $1,000,000; PROVIDED that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y) the sole consideration received shall be cash; and (z) the proceeds of any Division without the prior written consent of Requisite Lenderssuch Asset Sales shall be applied as required by subsection 2.4B(iii)(a).
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sub-lessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any portion of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all any portion of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Wholly-Owned North American Subsidiary of Company may be merged or consolidated with or into Company or any whollyWholly-owned Owned North American Subsidiary of Company, or may be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any whollyWholly-owned Owned North American Subsidiary of Company; provided that, in the case of such a merger or consolidation, Company or such whollyWholly-owned Owned North American Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(iii) Company and its Subsidiaries may make Permitted Acquisitions and Permitted Investments; to the extent permitted by subsection 7.3A(viii);
(iv) Company and its Subsidiaries may make Asset Sales of the assets listed on Schedule 1.1C; provided that (a) any until the aggregate, cumulative amount of Net Asset Sale is made for Proceeds from such Asset Sales exceeds the fair market value West 34th Street Loan Amount, (1) Company shall use such Net Asset Sale Proceeds to repay Revolving Loans (but not reduce the Revolving Loan Commitments) and (2) to the extent such Net Asset Sale Proceeds exceed the amount of Revolving Loans outstanding at the time Company receives such assets and for at least eighty-five percent (85%) cashNet Asset Sale Proceeds, Company may retain such excess, and (b) the aggregate, cumulative amount of Net Cash Asset Sale Proceeds of each from such Asset Sale are Sales in excess of the West 34th Street Loan Amount shall be applied as a mandatory prepayment in conformity accordance with subsection 2.4B(ii)(a2.4B(III)(A); and, provided, further, that ;
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not sellin excess of US$10,000,000 in any individual case or US$30,000,000 in the aggregate, exchange in each case in compliance with subsection 2.4B(iii)(a); provided that (a) the consideration received for such assets shall be in an amount at least equal to 121 the fair market value thereof, (b) at least 90% of the consideration received shall be cash and (c) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vi) Company may cause the dissolution of any Subsidiary to the extent permitted by subsection 6.2; and
(vii) Company and its Wholly-Owned North American Subsidiaries may make Asset Swaps provided that each of the following conditions is satisfied: (a) the aggregate fair market value (as determined in good faith by the Board of Directors of Company) of such Asset Swap shall not exceed US $25,000,000 in any Fiscal Year or otherwise dispose US$75,000,000 during the life of all or a substantial this Agreement; (b) the fair market value of the assets received (including cash not exceeding 5% of such value) pursuant to such Asset Swap (the "ACQUIRED ASSETS") shall be equal to at least the fair market value (as determined in good faith by the Board of Directors of Company) of the assets transferred pursuant to such Asset Swap (the "TRANSFERRED ASSETS"); (c) the cash portion of any Division without consideration received by Company or any of its Subsidiaries shall be used to make a mandatory prepayment in accordance with subsection 2.4B(iii)(a); (d) the Acquired Assets shall at all times be subject to a First Priority Lien of Lenders pursuant to the Collateral Documents; and (e) immediately prior written consent to the consummation of Requisite Lenderssuch Asset Swap, Company shall certify to US Administrative Agent and US Administrative Agent shall be satisfied in its sole discretion, that, after giving effect to such Asset Swap, on a pro forma basis, Company and its Wholly-Owned North American Subsidiaries will be Solvent; and (f) both before and immediately after consummation of such Asset Swap, no Default or Potential Event of Default shall have occurred and be continuing.
Appears in 1 contract
Samples: Priority Secured Credit Agreement (Loews Cineplex Entertainment Corp)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Holdings shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, or make any Business Acquisition, except:
(i) any Subsidiary of Company Borrower (other than a Subsidiary which has become liable for Indebtedness permitted under subsection 7.1(v)) may be merged or consolidated with or into Company Borrower or any wholly-owned Wholly Owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Wholly Owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company Borrower or such wholly-owned Wholly Owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company Borrower and its Consolidated Subsidiaries may acquire all dispose of obsolete, worn out or substantially all the business, surplus property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price ordinary course of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; andbusiness;
(iii) Company Borrower and its Subsidiaries may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof as determined by Borrower in good faith;
(iv) subject to subsection 7.11, Borrower and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $5,000,000 in any Fiscal Year or $15,000,000 in the aggregate; provided that (a) any Asset Sale is made the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent (85%) cash, and thereof as determined by Borrower in good faith; (b) at least 85% of the Net consideration received shall be Cash, Cash Proceeds Equivalents or the assumption of each Indebtedness; and (c) the proceeds of such Asset Sale are Sales shall be applied in conformity with as required by subsection 2.4B(ii)(a2.4B(iii)(a); andEXECUTION 110
(v) so long as no Potential Event of Default or Event of Default shall have occurred and be continuing or would result therefrom and Borrower delivers an Officers' Certificate to Administrative Agent and Lenders, providedin form and substance reasonably satisfactory to Administrative Agent, furtherconfirming that it will be in compliance, that Company on a pro forma basis after giving effect to such Permitted Acquisition as if it had occurred at the beginning of the period specified in the applicable covenant, with all covenants set forth in subsection 7.6 hereof, Borrower and its Subsidiaries may make Permitted Acquisitions in an amount not sell, exchange to exceed in the aggregate $5,000,000 (the "Permitted Acquisition Amount") in any Fiscal Year; provided that Borrower and it Subsidiaries may make Permitted Acquisitions in excess of the Permitted Acquisition Amount in any Fiscal Year to the extent the amount of such Permitted Acquisition does not exceed the Available Excess Consolidated Capital Expenditure Amount at the time of such Permitted Acquisition;
(vi) Holdings may make the Acquisition on the Closing Date and Holdings and Company may consummate the transactions contemplated by the Reorganization; and
(vii) Borrower and its Subsidiaries may discount or otherwise dispose transfer defaulted receivables in connection with the collection thereof in the ordinary course of all or a substantial portion of any Division without the prior written consent of Requisite Lendersbusiness.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Borrower or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or (except with respect to Inactive Subsidiaries) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquiredhereafter acquired (other than sales including the sale, transfer, replacement or other disposition of equipment and inventory, leases or sub-leases of its property, in each case, in the ordinary course of business), or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) or acquire or create any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Companyadditional Subsidiary; provided, or be liquidated, wound up or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of Company; provided that, in the case so long as no Default or Event of such a merger or consolidation, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which Default is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company Borrower and its Consolidated Subsidiaries may acquire all or substantially all consummate a Permitted Acquisition, so long as the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion payment of the purchase price for an Acquisition through and the issuance of shares of Common Stock, the value of the shares financing of such Common Stock Permitted Acquisition shall be deducted from not diminish (or result in the calculation reduction with respect to the immediately following Fiscal Year), of the purchase price amounts payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iiipursuant to Section 2.4(h) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cashhereof, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company the foregoing shall not restrict (i) the Loan Parties from making Capital Expenditures otherwise permitted under subsection 6.4(iii) (ii) Holdings or any other Subsidiary from acquiring or forming any Subsidiary so long as contemporaneous with such acquisition or formation such Subsidiary becomes a Subsidiary Guarantor, executes the Subsidiary Security Agreement and any other Security Documents reasonably required by Lender, in order to grant to Lender a first priority perfected Lien (other than Permitted Liens) in its Subsidiaries may not sellAssets in accordance with the terms of such Security Documents, exchange or otherwise dispose and the direct parent of such Subsidiary pledges all or a substantial portion the equity interests of any Division without such Subsidiary to Lender pursuant to the prior written consent of Requisite Lenders.Holdings Pledge
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-leaselease or sublease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions constituting Asset Sales; provided that the aggregate amount of cash and noncash consideration received in connection with such Asset Sales shall not exceed $2,500,000 in any Fiscal Year;
(v) Company and its Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS")any division or line of business of any Person; provided that (a) the purchase price aggregate amount of cash and noncash consideration (including all any Indebtedness assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries but excluding any equity Securities issued by Company in connection with such transaction) paid by Company and its Subsidiaries shall not exceed $7,500,000 for any single such Acquisitions acquisition or related series of acquisitions or $10,000,000 for purposes of determining all such acquisitions in any Fiscal Year, (b) after giving effect to each such acquisition, Company shall be in compliance with the all provisions of this subsection 6.7(ii); 7.6 on a pro forma basis, and provided further that (c) any business acquired in any such Person so acquired that constitutes a Material Subsidiary acquisition shall execute counterparts not be materially different from the lines of business engaged in by Company or its Subsidiaries as of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11Closing Date; and
(iiivi) Company and its Subsidiaries may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite LendersSales.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrower and Holdings shall not, each and shall not permit any of Company their Subsidiaries to, alter the corporate, capital or legal structure of Borrower and its Consolidated Holdings or any of their Subsidiaries will not (including issuing any preferred stock unless permitted hereunder), or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any PersonPerson or any division or line of business of any Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of Holdings’, Borrower’s, or any of their Subsidiaries’, business), except:
(i) any Subsidiary of Company Borrower or Holdings may be merged or consolidated with or into Company Holdings, Borrower or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its any Subsidiary’s business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Holdings, Borrower or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationany merger, Company Holdings, Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company Holdings and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price make Capital Expenditures permitted (including all assumed liabilitiesPermitted Acquisitions) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this 7.8 and Investments permitted under subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and7.3;
(iii) Company Holdings and its Subsidiaries may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that (a) any Asset Sale is made the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets thereof;
(iv) Holdings and for at least eighty-five percent its Subsidiaries may make (85%a) cash, Asset Sales and (b) sales in any calendar year of Lodging Assets which sales under this clause (b) do not, individually or in the Net Cash Proceeds aggregate generate more than 15% of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company Consolidated EBITDA for the most recently ended four consecutive Fiscal Quarter period;
(v) Holdings and its Subsidiaries may grant leases and subleases to other Persons in the ordinary course of business not sellmaterially interfering with the conduct of the business of Holdings or any of its Subsidiaries; and
(vi) Holdings and its Subsidiaries may enter into and consummate the sale of Telematrix Equipment, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite LendersInc. and Telematrix Equipment, LLC, which companies provide telecommunications products and services.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up up, or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer transfer, or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property property, or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets ofproperty, or stock or other evidence of beneficial ownership of, any Person, except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Company, or be liquidated, wound up or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of Company; provided that, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries or any division or line of business of any Person, except that:
(such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilitiesa) paid with respect to Acquisitions made on or after the Closing Date plus the amount any Subsidiary of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange Borrower may be excluded; provided further that to the extent that Company pays merged with or into Borrower or any wholly-owned Subsidiary of Borrower, or be liquidated, wound up or dissolved, or all or any portion part of its business, property, or assets may be conveyed, sold, leased, transferred, or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any wholly-owned Subsidiary of Borrower; PROVIDED THAT, in the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares case of such Common Stock a merger, Borrower or such wholly-owned Subsidiary shall be deducted from the calculation of the purchase price payable by Company continuing or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; andsurviving corporation;
(iiib) Company the Companies may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that (a) any Asset Sale is made PROVIDED THAT the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent thereof;
(85%) cash, and (bc) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its Subsidiaries Companies may not sell, exchange sell or otherwise dispose of all or their Real Estate Investments;
(d) the Companies may make Asset Sales of assets (other than Real Estate Investments) having a substantial portion fair market value not in excess of any Division without $5,000,000; PROVIDED THAT: (i) the prior written consent of Requisite Lenders.consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
Appears in 1 contract
Samples: Credit Agreement (Trammell Crow Co)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Borrower or any of its Subsidiaries, or enter into any transaction 106 of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of Company Borrower may be merged or consolidated with or into Company Borrower or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Subsidiary of CompanyGuarantor; provided PROVIDED that, in the case of such a merger or consolidationmerger, Company Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company Borrower and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its make Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that Capital Expenditures to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable not prohibited by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; andAgreement;
(iii) Company Borrower and its Subsidiaries may selldispose of obsolete, exchange worn out or surplus property in the ordinary course of business;
(iv) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided PROVIDED that (a) any Asset Sale is made the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a)thereof; and, provided, further, that Company
(v) Borrower and its Subsidiaries may make an Asset Sale of the Palo Alto Lease and Borrower and its Subsidiaries may make other Asset Sales of assets having in the aggregate a fair market value not sell, exchange or otherwise dispose in excess of all or a substantial portion $2,500,000; PROVIDED that in each (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y)the sole consideration received shall be cash; and (z)the proceeds of any Division without the prior written consent of Requisite Lenderssuch Asset Sales shall be applied as required by subsection 2.4B(iii)(a).
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Restricted Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Restricted Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or 110 dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Restricted Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its make Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made Capital Expenditures permitted under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and7.8;
(iii) Company and its Restricted Subsidiaries may selldispose of obsolete, exchange worn out or surplus property in the ordinary course of business;
(iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that (a) any Asset Sale is made the consideration received for such assets shall be in an -------- amount at least equal to the fair market value thereof;
(v) Company and its Restricted Subsidiaries may make Asset Sales of the Assets Held for Sale or Development; provided that the consideration -------- received for such assets and for shall be in an amount at least eighty-five percent equal to the fair market value thereof; and
(85%vi) cashCompany and its Restricted Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $20,000,000; provided -------- that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y) the consideration received for such assets shall be in the form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; and (bz) the Net Cash Asset Sale Proceeds of each such Asset Sale are Sales shall be applied in conformity with as required by subsection 2.4B(ii)(a2.4B(iii)(a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lenders.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrowers shall not, each and shall not permit any of Company and its Consolidated their Subsidiaries will not to, alter the corporate, capital or legal structure of Borrowers or any of their Subsidiaries (including issuing any preferred stock unless permitted hereunder), or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any PersonPerson or any division or line of business of any Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of Borrowers', or any of their Subsidiaries', business), except:
(i) any Subsidiary of Company Borrowers may be merged or consolidated with or into Company Borrowers or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its any Subsidiary's business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrowers or any wholly-owned Subsidiary of CompanyGuarantor; provided PROVIDED that, in the case of such a merger or consolidationany merger, Company Borrowers or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company Borrowers and its Consolidated their Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made make Capital Expenditures permitted under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this 7.8 and Investments permitted under subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and7.3;
(iii) Company Borrowers and their Subsidiaries may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided PROVIDED that (a) any Asset Sale is made the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(iv) Borrowers and their Subsidiaries may make Asset Sales or other sales (a) in any calendar year, of such assets and Lodging Assets which do not, individually or in the aggregate, generate more than 15% of Lodging EBITDA for at least eighty-five percent (85%) cash, the most recently ended four consecutive Fiscal Quarter period and (b) of Healthcare Assets; provided that with respect to Healthcare Assets (1) no single Asset Sales transaction or series of related Asset Sales transactions involving consideration in excess of $25,000,000 shall generate non-Cash consideration for the Net Cash Proceeds Borrowers or their Subsidiaries in excess of each 30% of the total consideration and (2) no single Asset Sales transaction or series of related Asset Sales transactions involving consideration in excess of 100 CREDIT AGREEMENT $50,000,000 individually or in the aggregate, shall require Borrowers to discount such Asset Sale are applied Healthcare Assets by more than 50% of the net book value thereof;
(v) Borrowers and their Subsidiaries may grant leases and subleases to other Persons in conformity the ordinary course of business not materially interfering with the conduct of the business of Borrowers or any of their Subsidiaries;
(vi) Borrowers may consummate the Conversion and make any name changes required in connection therewith or otherwise PROVIDED that Borrowers have provided Administrative Agent and Syndication Agent with the items required in subsection 2.4B(ii)(a)6.1(xviii) and any UCC financing statement amendments necessary to continue the perfected security interest in the Collateral pursuant to the Pledge Agreement, PROVIDED FURTHER that no Potential Event of Default or Event of Default has occurred and is continuing at the time of the proposed Conversion or will occur as a result of any proposed Conversion; and, provided, further, that Company
(vii) Borrowers and its their Subsidiaries may not sellenter into and consummate the sale of Telematrix Equipment, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite LendersInc. and Telematrix Equipment, LLC, which companies provide telecommunications products and services.
Appears in 1 contract
Samples: Credit Agreement (La Quinta Corp)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Neither Holdings nor Company shall, each nor shall it permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, make any PersonAcquisition, except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger of any -------- Subsidiary of Company with or consolidationinto Company or any wholly-owned Subsidiary Guarantor, Company or such wholly-owned Subsidiary Guarantor, as the case may be, shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its make Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made Capital Expenditures permitted under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and7.8;
(iii) Company and its Subsidiaries may selldispose of obsolete, exchange worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that (a) any Asset Sale is made -------- the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a)thereof; and
(v) subject to subsection 7.13, provided, further, that Company and its Subsidiaries may make Asset Sales of assets having a fair market value not sellin excess of $15,000,000 during the term of this Agreement; provided that (x) the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y) in the case of any such Asset Sale or related series of Asset Sales in respect of which the aggregate Net Asset Sale Proceeds equals or exceeds $1,000,000, exchange not less than 85% of the consideration received in respect thereof shall be cash; and (z) no later than the first Business Day following the date of receipt by Holdings or otherwise dispose any of its Subsidiaries of any Net Asset Sale Proceeds of such Asset Sale, Company shall deliver to Administrative Agent an Officer's Certificate, reasonably satisfactory in form and substance to Administrative Agent, demonstrating the derivation of the Net Asset Sale Proceeds of such Asset Sale from the gross sales price received in connection therewith;
(i) So long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Company and Subsidiary Guarantors may make Acquisitions of the assets or the stock or other equity Securities of, or by direct merger of Company or any Subsidiary Guarantor with, other Persons engaged in the same or related lines of business as Company and its Subsidiaries; provided that, with --------- respect to any Acquisition permitted under this subsection 7.7(vi):
(a) Company shall give Administrative Agent at least 10 days' prior written notice of such Acquisition, together with copies of the definitive documentation relating thereto;
(b) such Acquisition shall be made in compliance with all applicable laws;
(c) in the event such Acquisition is effected pursuant to a merger of (1) Company or (2) any Subsidiary Guarantor with any other Person, Company (in the case of clause (1)) or a substantial Subsidiary Guarantor (in the case of clause (2)) shall be the surviving or continuing corporation;
(d) in the event such Acquisition is effected by the purchase of the stock or other equity interests of any Person by Company or any Subsidiary Guarantor, (1) Company or such Subsidiary Guarantor, as the case may be, shall own all of the outstanding equity Securities of such Person, and (2) upon the consummation of such Acquisition, such Person shall comply with the provisions of subsections 6.8 and 6.9;
(e) prior to the consummation of such Acquisition, Company shall deliver to Administrative Agent and Lenders an Officer's Certificate, together with supporting financial statements and any other relevant information, in form and substance reasonably satisfactory to Administrative Agent and demonstrating in reasonable detail that, on a Pro Forma Basis, for the four-Fiscal Quarter period most recently ended (1) the Leverage Ratio shall not exceed 0.25 less than the Leverage Ratio required to be met for such period pursuant to subsection 7.6C, (2) Company and its Subsidiaries are otherwise in compliance with the covenants set forth in subsection 7.6 with respect to such period, (3) the portion of any Division without Consolidated Adjusted EBITDA for such period that is attributable to the prior written consent business or property being acquired shall not exceed 25% of Requisite Lenders.the total Consolidated Adjusted EBITDA for such period, and (4) the business or property being acquired in such Acquisition shall have positive Consolidated Adjusted EBITDA; provided that, for purposes of this clause (d)(4), the calculation -------- of Consolidated Adjusted EBITDA shall be made solely with respect to such acquired business or property and not with respect to Holdings and its Subsidiaries on a consolidated basis; and
(f) after giving effect to such Acquisition, the Total Utilization of Revolving Loan Commitments shall not exceed the Revolving Loan Commitments then in effect minus $5,000,000; -----
Appears in 1 contract
Samples: Credit Agreement (Wec Co)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Credit Parties shall not, each and shall not permit any of Company and its Consolidated their respective Subsidiaries will not to, enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its their business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquiredhereafter acquired (other than sales and other dispositions, including the sale, transfer, replacement or other disposition of equipment and inventory, in each case, in the ordinary course of business), or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, Person or any division or line of business of any Person or enter into any Marketing Agreement except:
(ia) Borrower and any Subsidiary of Company Borrower may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Companyinto, or be liquidatedmay convey, wound up or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred lease or otherwise disposed of, in one transaction dispose of or a series of transactions, acquire assets to Company or any wholly-owned Subsidiary of Company; Borrower (provided that, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary that Borrower shall be the continuing or surviving corporationentity) or with or into or to any one or more Subsidiaries of Borrower and, (b) any Subsidiary of Borrower may liquidate or dissolve as long as in connection therewith all of its assets are transferred to Borrower or any Subsidiary of Borrower; provided further thatthat a License Sub that is holding any FCC Licenses may only be merged with or liquidated or dissolved into, another License Sub; provided further, that none of the foregoing transactions shall result in any diminution in ownership by Borrower (on a consolidated basis) of any of the assets affected thereby;
(ii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iii) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(iv) So long as no Event of Default or Potential Event of Default shall have occurred and be continuing, or would result therefrom, Borrower and its Subsidiaries may consummate acquisitions of radio broadcasting stations in the United States (each, a “Permitted Acquisition”) and may enter into Marketing Agreements for radio broadcasting stations in the United States upon satisfaction of the following conditions (as applicable):
(a) in the case of such a merger or consolidation or disposition of a majority Permitted Acquisition:
(1) each of the stock conditions set forth in subsection 4.2 shall have been satisfied to the extent applicable; and
(2) prior to any such Permitted Acquisition, Borrower shall have demonstrated, to Administrative Agent’s reasonable satisfaction, pro forma compliance with each of a Subsidiary or substantially the covenants set forth in subsection 7.6 after giving effect to such Permitted Acquisition and throughout the remaining term of this Agreement and shall provide projections to Administrative Agent evidencing such compliance, all of the businessforegoing to be reasonably satisfactory in form and substance to Administrative Agent; provided, property or assets however, that if on the date of such a Subsidiary Permitted Acquisition the aggregate fair market value of all the Acquired Stations in such Permitted Acquisition is less than Twenty Million Dollars ($20,000,000), Borrower shall only be required to deliver an Officer’s Certificate of Borrower confirming that the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any representations and warranties in Section 5 continue to be true, correct and complete in all material respects as of the Obligations, (a) the continuing, surviving or transferee corporation Permitted Acquisition Closing Date and providing a representation and warranty that Borrower’s commercially reasonable projections demonstrate that Borrower shall expressly assume the obligations be in pro forma compliance with each of the Affected Subsidiary under covenants set forth in subsection 7.6 after giving effect to such guaranty Permitted Acquisition and throughout the term of this Agreement.
(b) in the case of an Marketing Agreement:
(1) if such Marketing Agreement is not of a merger station subject to a pending Permitted Acquisition, such Marketing Agreement together with any other Marketing Agreements of stations not subject to pending Permitted Acquisitions in effect at such time shall not contribute (or consolidation, the net worth be projected to contribute) more than 10% of Consolidated Operating Cash Flow for any four consecutive Fiscal Quarter Period; and
(2) Borrower shall have delivered to Administrative Agent an Officer’s Certificate dated as of the continuing date Borrower or surviving corporation (its Subsidiaries enter into such Marketing Agreement and calculated without to give effect to any related transactions, demonstrating compliance with the conditions set forth in this subsection 7.7(iv) and the covenants set forth in this Agreement after giving effect to any increase such Marketing Agreement;
(v) Borrower and its Subsidiaries may make Asset Sales of assets having an aggregate, cumulative fair market value not to exceed Ten Million Dollars ($10,000,000) since the Closing Date; provided that (a) the consideration received for such assets shall be in the an amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared at least equal to the amount fair market value thereof and (b) the sole consideration received shall be Cash or Cash and Permitted Sale Notes;
(vi) Borrower and its Subsidiaries may make other Asset Sales; provided that either (I) each of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior following conditions is satisfied: (a) the assets subject to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral DocumentAsset Sales, in the case aggregate together with all other assets sold pursuant to Asset Sales of the Borrower and its Subsidiaries since the Closing Date did not generate more than 10% of Consolidated Operating Cash Flow taken as a single accounting period (calculated on a cumulative basis since the Closing Date) and excluding for such purpose Borrower’s corporate overhead to the extent deducted in determining net income, (b) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (c) the sole consideration received shall be Cash or Cash and Permitted Sale Notes or (II) Requisite Lenders approve of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the ObligationsAsset Sale;
(iivii) Company Borrower and its Consolidated Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on any division or after the Closing Date plus the amount line of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price business of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that Person to the extent that Company pays all or any portion of the purchase price for such acquisition constitutes an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this Investment otherwise permitted under subsection 6.7(ii7.3(ix); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iiiviii) Company As long as no Event of Default or Potential Event of Default has occurred and is continuing, the Credit Parties may sell, exchange sell or otherwise dispose of assets in Asset Sale transactionstransfer Tower Sites to BFT; provided that (a) any Asset Sale is made the consideration for such sale or transfer shall consist of a promissory note or notes in an aggregate principal amount of not less than the greater of (x) the fair market value of such assets and Tower Sites or (y) the depreciated acquisition costs to the applicable Credit Party for such Tower Site, which shall have a final maturity of not more than 20 years from the date of issuance thereof, shall provide for monthly cash interest at least eighty-five percent (85a per annum rate of not less than 6.0%) cash, and shall provide for monthly repayments of principal such that the amount of each monthly installment of principal and interest through and including the last such installment shall be equal to each other such installment; (b) those Credit Parties which are transferors of such Tower Sites shall, substantially concurrently with such sale or transfer, enter into lease contracts with BFT for such Tower Sites, which contracts shall be in form and substance reasonably satisfactory to Administrative Agent; (c) in any event, in any month following such transfer the Net Cash Proceeds aggregate of each all lease payments for such Asset Sale are applied Tower Sites made in conformity with subsection 2.4B(ii)(asuch month by such Credit Party shall not exceed the amount of the installment of principal and interest paid during such month in cash to such Credit Party pursuant to the promissory note or notes referred to in the preceding clause (a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose (d) such Tower Sites and the leases in respect thereof shall be subject to the terms and conditions of the BFT Consent Letter (all or of the foregoing transfers and related transactions being a substantial portion of any Division without the prior written consent of Requisite Lenders“Permitted Tower Transfer”).
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Holdings shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or 106 114 dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of Company Holdings may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company Holdings and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its make Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made Capital Expenditures permitted under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and7.8;
(iii) Company Holdings and its Subsidiaries may selldispose of obsolete, exchange worn out or surplus property in the ordinary course of business;
(iv) Holdings and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(v) subject to subsection 7.13, Holdings and its Subsidiaries may make Asset Sales (including Swaps) of assets having a fair market value not in excess of an aggregate of (a) $25,000,000 during the eighteenth-month period following the Closing Date and (b) $35,000,000 (including the $25,000,000 permitted pursuant to clause (a)) during the term of this Agreement; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (2) in the case of any Asset Sale transactionsother than a Swap, the gross consideration received shall be at least 80% Cash and the balance as promissory notes payable to a Loan Party; and (3) the Cash proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vi) Holdings and its Subsidiaries may make acquisitions (each a "PERMITTED ACQUISITION"); provided that (a) any Asset Sale is made for the fair market value Person or business so acquired shall be in the line of such assets and for at least eighty-five percent (85%) cash, and business described in subsection 7.13; (b) Company shall deliver to Administrative Agent a Compliance Certificate demonstrating that, after giving effect to the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); andacquisition, provided, further, that Company Holdings and its Subsidiaries may Subsidiaries, taken as a whole, shall be in pro forma compliance with the covenants in Section 7; (c) such acquired Person shall become a Guarantor under and shall comply with the provisions of subsection 6.7; and (d) the aggregate consideration for such acquisitions (including any Acquired Indebtedness acquired or assumed in connection with such acquisition) shall not sellexceed $10,000,000 for any single acquisition and $25,000,000 for all such acquisitions, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lenders.; provided further that the amount of the consideration paid for any acquisition consented 107 115 to by Requisite Lenders (either before or after the date of consummation of such acquisition) in accordance with this clause (d) shall not be included in any determination as to the maximum amount of expenditures permitted by this clause (d); and
(vii) Holdings may issue (a) Holdings Common Stock in one or more classes and (b)
Appears in 1 contract
Samples: Credit Agreement (Optel Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of the Borrower or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock Capital Stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(a) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (i) any Guarantor or other Subsidiary of Company the Borrower may be merged or consolidated with or into Company the Borrower or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or any wholly-owned Subsidiary of CompanyGuarantor and (ii) in connection with any Permitted Acquisition, the Borrower or any Guarantor may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided thatthat (A) if such merger involves the Borrower, in the case of such a merger or consolidation, Company or such wholly-owned Subsidiary Borrower shall be the continuing or surviving corporation; provided further that, in the case of corporation and (B) if such a merger or consolidation or disposition of involves a majority of the stock of a Subsidiary or substantially all of the businesswholly-owned Guarantor, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation wholly-owned Guarantor shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of be the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the or such continuing or surviving corporation is liable as compared shall be a wholly-owned Subsidiary of the Borrower and shall comply with Sections 5.9, 5.10 and 5.11 hereof;
(b) the Borrower and its Subsidiaries may sell inventory in the ordinary course of business and dispose of obsolete, worn out or surplus property in the ordinary course of business (but excluding dispositions of underperforming assets);
(c) subject to Section 6.11, the Borrower and its Subsidiaries may make (i) asset sales and dispositions (including sales and dispositions of underperforming assets) not otherwise permitted by this Section 6.7 of assets having a fair market value not in excess of $20,000,000 in the aggregate in any four Fiscal Quarter period, or $90,000,000 in the aggregate during the term of this Credit Agreement; provided that properties acquired in Permitted Acquisitions shall be excluded from the foregoing baskets to the amount of intercompany Indebtedness for which extent the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case sale of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which properties is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, contemplated at the time of consummation of such mergerPermitted Acquisitions, consolidation or transfer, be pledged to secure the Obligations;
and (ii) Company sale and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted leasebacks permitted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactionsSection 6.8; provided that (aA) any Asset Sale is made the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for thereof, (B) at least eighty-five percent (85%) cash, 80% of the consideration received shall be Cash and (bC) the Net Cash Proceeds of such asset sales shall be applied as required by Section 2.8(b)(ii);
(d) the Borrower or any Subsidiary of the Borrower may make acquisitions (each a “Permitted Acquisition”) of assets and businesses (including acquisitions of the Capital Stock or other equity interests of another Person); provided that:
(i) immediately prior to and after giving effect to any such Asset Sale acquisition, the Borrower and its Subsidiaries shall be in compliance with the provisions of Section 6.12 hereof;
(ii) such Person becomes a Subsidiary of the Borrower, or such business, property or other assets are applied acquired by the Borrower or a Subsidiary of the Borrower;
(iii) prior to the consummation of any such acquisition that would result in the Borrower having completed Permitted Acquisitions for Net Cash Consideration exceeding $10,000,000 in any Fiscal Quarter, the Borrower shall deliver to the Administrative Agent (A) an Officers’ Certificate (1) certifying that no Default or Event of Default under this Agreement shall then exist or shall occur as a result of such acquisition and (2) demonstrating, in a manner consistent with past practices or otherwise acceptable to the Administrative Agent, that after giving effect to such acquisition and to all Indebtedness to be incurred or assumed or repaid in connection with or as consideration for such acquisition, that the Borrower would be in pro forma compliance with the Senior Secured Leverage Incurrence Test for the four consecutive Fiscal Quarter period ending on or immediately prior to the date of the proposed acquisition; provided that if such acquisition is consummated during the first 45 days after the end of a Fiscal Quarter, then such pro forma compliance shall be determined for the four consecutive Fiscal Quarter period ending on the last day of the penultimate Fiscal Quarter prior to the date of such acquisition, (B) a copy of all environmental reports obtained in connection with such acquisition and a copy of the principal documents (e.g., purchase agreement, merger agreement) related to such acquisition, (C) for any acquisition with Net Cash Consideration in excess of $50,000,000, a copy, prepared in conformity with subsection 2.4B(ii)(aGAAP or otherwise acceptable to the Administrative Agent, of financial statements (audited financial statements to the extent available) of the Person or business so acquired for the immediately preceding four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in the preceding clause (A) (and, if an asset purchase, pro forma financial statements on a historical basis), (D) for any acquisition with Net Cash Consideration in excess of $200,000,000, copies, prepared in conformity with GAAP or otherwise acceptable to the Administrative Agent, of audited financial statements of the Person or business so acquired for the most recent available Fiscal Year, and of unaudited financial statements prepared in a manner consistent with such Person’s most recent audited financial statements for the four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in the preceding clause (A) (and, if an asset purchase, pro forma financial statements on a historical basis); provided that, if audited financial statements are not available for a period exceeding two Fiscal Quarters following the date of the most recent audited financial statements provided for the Person or business so acquired, then the Borrower also will provide a due diligence report in form and substance acceptable to the Administrative Agent from a third party auditor acceptable to the Administrative Agent and (E) such other information as the Administrative Agent may reasonably request;
(iv) the Borrower shall, and shall cause its Subsidiaries to, comply with the requirements of Sections 5.9, 5.10 and 5.11 hereof with respect to such acquisitions;
(v) after giving effect to such acquisition, there shall be at least $20,000,000 of borrowing availability under the Revolving Committed Amount;
(vi) such acquisition is not a “hostile” acquisition and has been approved by the board of directors and/or shareholders of the Borrower and the Person that is the subject of the acquisition; and
(vii) with respect to any single acquisition (or series of related acquisitions) of 20 or more stores or any single acquisition (or series of related acquisitions) where the purchase price is equal to or greater than $20,000,000, such Person has EBITDA for the twelve month period ending as of the most recent Fiscal Quarter end of such Person prior to the acquisition date in an amount greater than $0, after giving effect to all adjustments to EBITDA permitted pursuant to Regulation S-X and any cost savings or synergies acceptable to the Administrative Agent; provided, however, to the extent an acquisition fails to meet the requirements set forth in Section 6.7(d)(iii)(A)(2) or Section 6.7(d)(v) above, but otherwise satisfies the other requirements set forth in this Section 6.7(d), the Borrower and its Subsidiaries may make such acquisition (each an “Additional Acquisition”) subject to the following conditions: (1) no more than 10 stores may be acquired in any Fiscal Year pursuant to Additional Acquisitions, (2) the total consideration paid for Additional Acquisitions in any Fiscal Year shall not exceed $50,000,000 in the aggregate, (3) for purposes of this Credit Agreement, any such Additional Acquisition shall be treated as a capital expenditure rather than a Permitted Acquisition and shall be included in the calculation of Consolidated Capital Expenditures for the relevant period and (4) each such Additional Acquisition shall be subject to the approval of the Administrative Agent, not to be unreasonably withheld; provided, further, it is understood and agreed that Company an acquisition of a Development Property shall constitute a Consolidated Capital Expenditure unless it is part of a Permitted Acquisition.
(e) the Borrower may amend its Certificate of Incorporation to create and issue classes or series of preferred stock pursuant thereto; provided that any class or series of preferred stock issued under such authorized “blank check” preferred stock shall not be Disqualified Capital Stock;
(f) the Borrower may terminate any Hedging Agreement permitted pursuant to Section 6.3(g); and
(g) the Borrower and its Subsidiaries may make transfers of any of their properties or assets to another Person in transactions in which 80% of the consideration received by the transferor consists of properties or assets (other than Cash) that will be used in the business of the transferor; provided that (i) the aggregate fair market value (as determined in good faith by the board of directors of the Borrower) of the property or assets being transferred by the Borrower or such Subsidiary is not sellgreater than the aggregate fair market value (as determined in good faith by the board of directors of the Borrower) of the property or assets received by the Borrower or such Subsidiary in such exchange, exchange or otherwise dispose (ii) the aggregate fair market value (as determined in good faith by the board of directors of the Borrower) of all property or a substantial portion assets transferred by the Borrower and any of its Subsidiaries in connection with such exchanges in any Fiscal Year shall not exceed $20,000,000 and (iii) the terms of any Division without such transaction shall be reasonably satisfactory to the prior written consent of Requisite LendersAdministrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Pantry Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Credit Parties shall not, each and shall not permit any of Company and its Consolidated their respective Subsidiaries will not to, alter the corporate, capital or legal structure of the Credit Parties or any of their respective Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquiredhereafter acquired (other than sales including the sale, transfer, replacement or other disposition of equipment and inventory, in each case, in the ordinary course of business), or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, Person or any division or line of business of any Person or enter into any LMA except:
(i) any Subsidiary Capital Expenditures permitted pursuant to subsection 7.8;
(ii) So long as no Event of Company may Default or Potential Event of Default shall have occurred and be merged or consolidated with or into Company or any wholly-owned Subsidiary of Companycontinuing, or be liquidatedwould result therefrom, wound up Company and its Subsidiaries may consummate the Charleston Acquisition, the Faircom Acquisition and the Park Lane Acquisition and other acquisitions of radio broadcasting stations (each, a "PERMITTED ACQUISITION") may enter into or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of Companycontinue LMA's for radio broadcasting stations; provided PROVIDED that, in the case of such a merger or consolidationPermitted Acquisition, Company or such wholly-owned Subsidiary shall be each of the continuing or surviving corporationconditions set forth in subsection 4.3 have been satisfied; provided further PROVIDED FURTHER that, in the case of such a merger or consolidation or disposition of a majority an LMA each of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, following conditions shall be satisfied:
(a) there shall be no obligation on the continuingpart of Company or any of its Subsidiaries to acquire any Station or assets other than in accordance with this Agreement and, surviving or transferee corporation without limiting the foregoing, the terms and conditions of such LMA shall expressly assume the obligations of the Affected Subsidiary under such guaranty be in form and substance satisfactory to Requisite Lenders;
(b) such LMA shall only be entered into in the case of by Company or its Subsidiaries as a merger lessee with respect to radio broadcasting stations Company or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect its Subsidiaries would otherwise be permitted to any increase acquire in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligationsaccordance with this subsection 7.7(ii);
(iic) Company and its Consolidated Subsidiaries may acquire all or substantially all the businessSubsidiaries' rights, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged title and interest in businesses substantially similar and to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock LMA shall be deducted from the calculation subject to a First Priority Lien in favor of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes Agent on behalf of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11Lenders; and
(d) Company shall have delivered to Agent a Compliance Certificate, substantially in the form of EXHIBIT VI annexed hereto, dated as of the date Company or its Subsidiaries enter into such LMA and calculated to give effect to the funding of Revolving Loans under this Agreement after giving effect to such LMA, demonstrating compliance with the covenants set forth in this Agreement after giving effect to such LMA.
(iii) Subject to the prepayment requirements of subsection 2.4B(iii) and as long as no Event of Default or Potential Event of Default shall have occurred and be continuing or would result therefrom, Company and its Subsidiaries may sellsell the San Diego Station, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made the Lexington Station and/or the Charleston Stations for a cash purchase price equal to at least the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a)Stations; and
(iv) Subject to subsection 7.11 and the prepayment requirements of subsection 2.4B(iii), providedCompany may issue additional common stock and Company Preferred Stock so long as such additional common stock and Company Preferred Stock have the same, furtheror substantially the same, attributes and provisions as such capital stock as of the Closing Date; PROVIDED that Company may issue additional common stock and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without Company Preferred Stock with different attributes and provisions upon the prior written consent of Requisite Lenders.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Borrowers shall not, each and shall not permit any of Company and their respective Subsidiaries to, alter the corporate, capital or legal structure of any Borrower or any of its Consolidated Subsidiaries will not respective Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sub-lessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Any Subsidiary of Company a Borrower may be merged or consolidated with or into Company the Borrowers or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrowers or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company the Borrowers or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or Any Subsidiary of a Borrower (other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilitiesthan a Material Subsidiary) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all liquidated or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; anddissolved;
(iii) Company The Borrowers and their respective Subsidiaries may selldispose of obsolete, exchange worn out or surplus property in the ordinary course of business;
(iv) The Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
(v) Subject to subsection 7.13, the Borrowers and their respective Subsidiaries may make Asset Sales; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y) the sole consideration received shall be cash; and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4A(iii)(a); and
(vi) The Borrowers may make acquisitions of the entire business or the capital stock of another Person upon satisfying the following conditions;
(a) The Borrowers may make acquisitions; provided that the aggregate consideration paid in connection with any Asset Sale is made for acquisition shall not exceed the fair market value of the property acquired in such assets and for at least eighty-five percent (85%) cash, and acquisition;
(b) No Event of Default or Potential Event of Default shall have occurred and be continuing, or would result from, such acquisition;
(c) The Borrowers shall have updated each of the Net Cash Proceeds Schedules to this Agreement and the other Loan Documents to the extent necessary to reflect changes resulting from the consummation of such acquisition, each in form and substance satisfactory to the Administrative Agent, and the Borrowers shall have delivered to the Administrative Agent an Officer's Certificate to which such Asset Sale updated Schedules shall be attached certifying that such Schedules are applied true, correct and complete as of the date of such acquisition;
(d) The Borrowers shall have delivered to the Administrative Agent complete and correct copies of all Permitted Acquisition Documents related to such acquisition (together with any opinions of counsel delivered in conformity connection therewith and stating that Administrative Agent and Lenders are entitled to rely thereon);
(e) After giving effect to such acquisition, the Loan Parties shall be in compliance on a pro forma basis with subsection 2.4B(ii)(a)all of the covenants set forth in this Section 7; and, provided, furtherthat for purposes of determining pro forma compliance with financial covenants for any period during which new Subsidiaries, that assets or businesses are acquired, Consolidated Adjusted EBITDA and Consolidated Interest Expense shall be calculated with respect to such periods and such Subsidiaries, assets or businesses on a pro forma basis, including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X promulgated under the Securities Act, using the audited historical financial statements of all entities or assets so acquired or to be acquired and the consolidated financial statements of the Company and its Subsidiaries may not sellwhich shall be reformulated as if such acquisition, exchange and any acquisi- tions which have been consummated during such period, and any Indebtedness or otherwise dispose other liabilities incurred in connection with any such acquisition had been consummated or incurred at the beginning of all or a substantial such period (and assuming that such Indebtedness bears interest during any portion of any Division without the applicable measurement period prior written consent to the date of Requisite Lenderssuch acquisition equal to the average effective Adjusted Eurodollar Rates plus the Applicable Margin applicable to outstanding Loans during such period), all such calculations to be in form and substance reasonably satisfactory to the Administrative Agent; and
(f) After giving effect to such acquisition, the aggregate principal amount of unused available Revolving Loans shall be equal to the amount necessary to finance the ongoing working capital requirements of the Borrowers and their respective Subsidiaries, as reasonably determined by the Borrowers and approved by the Administrative Agent, which approval shall not be unreasonably withheld.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Credit Parties shall not, each and shall not permit any of Company and its Consolidated their respective Subsidiaries will not to, alter the corporate, or other legal structure of the Credit Parties or any of their respective Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-lease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its their 85 94 business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquiredhereafter acquired (other than sales and other dispositions, including the sale, transfer, replacement or other disposition of equipment and inventory, in each case, in the ordinary course of business), or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, Person or any division or line of business of any Person or enter into any LMA except:
(ia) any Borrower and any Subsidiary of Company any Borrower may be merged or consolidated with or into Company or any wholly-owned Subsidiary of Companyinto, or be liquidatedmay convey, wound up or dissolved, or all or substantially all of its business, property or assets may be conveyed, sold, leased, transferred lease or otherwise disposed of, in one transaction or a series dispose of transactions, assets to Company or any wholly-owned Subsidiary of Company; Borrower (provided that, in the case of that such a merger or consolidation, Company or such wholly-owned Subsidiary Borrower shall be the continuing or surviving corporationentity) or with or into or to any one or more Subsidiaries of any Borrower and (b) any Subsidiary of any Borrower may liquidate or dissolve as long as in connection therewith all of its assets are transferred to any Borrower or any Subsidiary of any Borrower; provided further thatthat a License Subsidiary may only be merged with or liquidated or dissolved into, another License Subsidiary; provided further, that none of the foregoing transactions shall result in any diminution in ownership by Borrowers (on a combined basis) of any of the assets affected thereby;
(ii) Borrowers and their respective Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iii) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof as determined by Borrowers in good faith;
(iv) So long as no Event of Default or Potential Event of Default shall have occurred and be continuing, or would result therefrom, Borrowers and their respective Subsidiaries may consummate acquisitions of radio broadcasting stations in one of Borrowers' existing markets or in one of the top 100 markets in the United States (as determined by the most current edition of BIA's Investing in Radio) (each, a "PERMITTED ACQUISITION") and may enter into LMA's for radio broadcasting stations upon satisfaction of the following conditions (as applicable):
(a) in the case of such a merger or consolidation or disposition of a majority Permitted Acquisition:
(1) each of the stock conditions set forth in subsection 4.2 shall have been satisfied; and
(2) prior to any such Acquisition, Borrowers shall have demonstrated, to Agent's reasonable satisfaction, pro forma compliance with each of a Subsidiary or substantially the covenants set forth in subsection 7.6 after giving effect to such Acquisition and throughout the remaining term of this Agreement and shall provide projections to Agent evidencing such compliance, all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty foregoing to be reasonably satisfactory in form and substance to Agent.
(b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lenders.LMA:
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Borrower or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any PersonPerson or any division or line of business of any Person (other than purchases or other acquisitions of Inventory, materials and equipment in the ordinary course of Borrower's, or any of its Subsidiary's, business), except:
(i) any Subsidiary of Company Borrower may be merged or consolidated with or into Company Borrower or any wholly-owned Subsidiary of CompanyGuarantor that is wholly owned, directly or indirectly, by Borrower, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Subsidiary of CompanyGuarantor that is wholly owned, directly or indirectly, by Borrower; provided that, that (a) in the case of such a merger merger, Borrower or consolidationa Subsidiary Guarantor that is wholly owned, Company directly or such wholly-owned Subsidiary indirectly, by Borrower shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger liquidation, winding up or consolidation or disposition of a majority of the stock of a Subsidiary or substantially dissolution, all of the business, property or assets of such Subsidiary are transferred to Borrower or a Subsidiary of Guarantor that is wholly owned, directly or indirectly, by Borrower or as otherwise expressly permitted under this Agreement; and provided, further, that Brown Jordan Company the stock of which is pledged shall xxx xx xxxxxtted to secure the Obligationsassign, whether by asset sale, merger or otherwise, the stock Asset Purchase Agreement dated as of June 1, 1989 by and among Ladd Furniture, Inc. ("Ladd"), Maytag Corporation, Xxe BJC Company and The Gunlocke Company or the continuingAssignment and Assumption Agreement dated as of July 7, surviving 1989 by and between Ladd and certain of its subsxxxxries (including Brown Jordan Company) or transferee corporation shall, at any xx xxx xxxxxs or liabilities thereunder to any other Person without the time prior written consent of consummation of such merger, consolidation or transfer, be pledged to secure the ObligationsLadd;
(ii) Company Borrower and its Xxxxidiaries may make Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made Capital Expenditures permitted under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and7.8;
(iii) Company Borrower and its Subsidiaries may selldispose of obsolete, exchange worn out or surplus property in the ordinary course of business;
(iv) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that (a) any Asset Sale is made the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent thereof;
(85%v) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not sell, exchange or otherwise dispose of all or a substantial portion as part of any Division without financing transaction, but only to the prior written consent extent permitted under the Security Agreement;
(vi) Borrower and its Subsidiaries may grant leases and subleases to other Persons in the ordinary course of Requisite Lendersbusiness not materially interfering with the conduct of the business of Borrower or any of its Subsidiaries; and
(vii) Borrower may consummate the Acquisition.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of Company's Subsidiaries to, alter the corporate, capital or legal structure of Company and its Consolidated Subsidiaries will not or any of Company's Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Domestic Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned Subsidiary of CompanyGuarantor, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-owned Subsidiary of CompanyGuarantor; provided that, in the case of such a merger or consolidationmerger, Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the make (x) Consolidated Capital Expenditures permitted under subsection 7.8 and (y) Consolidated Capital Software Expenditures permitted under subsection 7.16; 128 EXECUTION
(iii) Company and its Consolidated Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(such asset iv) Company and its Subsidiaries may sell or stock acquisitions being herein collectively referred to as "ACQUISITIONS")otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the purchase price consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(including all assumed liabilitiesv) Acquisition Co. and Scientific Games may consummate the Merger;
(vi) Company or any of its Subsidiaries may convey, sell, transfer or otherwise dispose for Cash of any Margin Stock, whether now owned or hereafter acquired; provided that such disposition is for fair value and the proceeds are held in Cash or Cash Equivalents;
(vii) Company and its Subsidiaries may consummate Permitted Acquisitions; provided that each of the following conditions is satisfied:
(a) the Acquired Business is engaged in a line of business that Company and its Subsidiaries are permitted to engage in under subsection 7.13A;
(b) the Acquired Business becomes a wholly-owned Subsidiary Guarantor of Company or is acquired by a wholly-owned Subsidiary Guarantor of Company in such Permitted Acquisition;
(c) the aggregate amount of Cash consideration paid with respect to by Company and its Subsidiaries (x) for any Permitted Acquisition or series of related Permitted Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does shall not exceed $5,000,000 20 million and (y) for all Permitted Acquisitions made after the Closing Date shall not exceed $60 million;
(d) the excess of the Revolving Loan Commitments over the Total Utilization of Revolving Loan Commitments immediately after giving effect to such Permitted Acquisition will be not less than $15 million;
(e) concurrently with the consummation of such Permitted Acquisition, Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 with respect to such Permitted Acquisition;
(f) Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default shall then exist or shall occur as a result of such Permitted Acquisition and (2) demonstrating that after giving effect to such Permitted Acquisition and to all Indebtedness to be incurred or assumed or repaid in connection with or as consideration for such Permitted Acquisition, Company will be in compliance with the financial covenants set forth in subsection 7.6, calculated on a Pro Forma Basis, as of the last day of the four Fiscal Quarter period most recently ended prior to the date of the proposed Permitted Acquisition for which the relevant financial information is available; 129 EXECUTION
(g) prior to the consummation of any Permitted Acquisition having a purchase price in excess of $10 million, Company shall deliver to Administrative Agent a copy, prepared in conformity with GAAP (subject to year-end adjustments and the absence of footnotes), of (i) financial statements of the Person or business so acquired for the immediately preceding four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in the immediately preceding clause and (ii) to the extent available from the applicable seller of the Acquired Business or the Acquired Business, audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period of such Person;
(h) prior to the consummation of any Permitted Acquisition having a purchase price in excess of $15 million, Company shall deliver to Administrative Agent revised financial projections (in a form substantially consistent with previously provided projections) for Company, on a Pro Forma Basis, for such proposed Permitted Acquisition for the succeeding four Fiscal Quarters;
(i) the aggregate purchase price of all Permitted Acquisitions that result in a new Foreign Subsidiary of Company or result in the Acquired Business being owned by a Foreign Subsidiary of Company shall not exceed $10 million; and
(viii) Company and its Subsidiaries may make Asset Sales of assets having a fair market value of not in excess of $20 million in any Fiscal Year or of $60 million in the aggregate for all such AcquisitionsAsset Sales during the term of this Agreement; provided that in calculating each case (x) the purchase price of consideration received for such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for an amount at least equal to the fair market value thereof; (y) 80% of such assets and for at least eighty-five percent (85%) cash, the consideration received therefor shall be Cash; and (bz) the Net Cash Proceeds proceeds of each any such Asset Sale are applied in conformity with as required by subsection 2.4B(ii)(a2.4B(iii)(a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lenders.
Appears in 1 contract
Samples: Credit Agreement (Autotote Corp)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Company shall not, each and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Company and or any of its Consolidated Subsidiaries will not Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, sub-leasesublease, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter acquiredhereafter acquired (other than in the ordinary course of business), or acquire by purchase or otherwise all or substantially all any portion of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any PersonPerson or any division or line of business of any Person (other than in the ordinary course of business), except:
(i) any Subsidiary of Company may be merged or consolidated with or into Company or any wholly-owned other Subsidiary of Company, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any wholly-other wholly owned Subsidiary of Company; provided that, in the case of such a merger or consolidationmerger, Company or such wholly--------- wholly owned Subsidiary shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that -------- the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(iii) Company and its Subsidiaries may lease stores owned or leased by the Company or Subsidiaries to franchisees; provided that the rentals -------- received under any such lease reflect the fair market value of such property;
(iv) subject to subsection 7.13, Company and its Subsidiaries may sell or dispose of (y) the Far West Division and (z) may make other Asset Sales (other than Specified Asset Sales) having an aggregate fair market value not in excess of $10,000,000; provided that (a) any the consideration -------- received for each such Asset Sale is made for shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent (85%) cash, and thereof; (b) the Net Cash Proceeds of consideration for each such Asset Sale are (other than the Far West Division) is at least 75% Cash, and the balance is promissory notes payable to Company or its Subsidiaries; and (c) the proceeds of such Asset Sales shall be applied in conformity with as required by subsection 2.4B(ii)(a2.4B(iii)(a); and, provided, further, that ;
(v) Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lenders.make Investments permitted pursuant to subsection 7.3;
(vi) Company and its Subsidiaries may make Permitted Acquisitions; and (vii) Company and its Subsidiaries may make Specified Asset Sales; and
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, alter the corporate, capital or legal structure of Borrower or any of its Subsidiaries, or enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any part of its business, property or fixed assets, or all or any portion of the stock or beneficial ownership, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any PersonPerson or any division or line of business of any Person (other than purchases or other acquisitions of Inventory, materials and equipment in the ordinary course of Borrower's, or any of its Subsidiary's, business), except:
(i) any Subsidiary of Company Borrower may be merged or consolidated with or into Company Borrower or any wholly-owned Subsidiary of CompanyGuarantor that is wholly owned, directly or indirectly, by Borrower, or be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Subsidiary of CompanyGuarantor that is wholly owned, directly or indirectly, by Borrower; provided that, that (a) in the case of such a merger merger, Borrower or consolidationa Subsidiary Guarantor that is wholly owned, Company directly or such wholly-owned Subsidiary indirectly, by Borrower shall be the continuing or surviving corporation; provided further that, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligations, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b) in the case of a merger or consolidation, the net worth of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger liquidation, winding up or consolidation or disposition of a majority of the stock of a Subsidiary or substantially dissolution, all of the business, property or assets of such Subsidiary are transferred to Borrower or a Subsidiary of Guarantor that is wholly owned, directly or indirectly, by Borrower or as otherwise expressly permitted under this Agreement; and provided, further, that Brown Jordan Company the stock of which is pledged shalx xxx xx xxxxitted to secure the Obligationsassign, whether by asset sale, merger or otherwise, the stock Asset Purchase Agreement dated as of June 1, 1989 by and among Ladd Furniture, Inc. ("Xxdd"), Maytag Corporation, Xxe BJC Company and The Gunlocke Company or the continuingAssignment and Assumption Agreement dated as of July 7, surviving 1989 by and between Ladd and certain of its sxxxxdiaries (including Brown Jordan Company) xx xxx xx xxx rights or transferee corporation shall, at liabilities thereunder to any other Person without the time prior written consent of consummation of such merger, consolidation or transfer, be pledged to secure the ObligationsLadd;
(ii) Company and Borrower xxx its Consolidated Subsidiaries may acquire all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its make Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made Capital Expenditures permitted under subsection 6.3(vii) does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and7.8;
(iii) Company Borrower and its Subsidiaries may selldispose of obsolete, exchange worn out or surplus property in the ordinary course of business;
(iv) Borrower and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sale transactionsSales; provided that (a) any Asset Sale is made the consideration received for such assets shall be in an amount at least equal to the fair market value of such assets and for at least eighty-five percent thereof;
(85%v) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, Accounts arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not sell, exchange or otherwise dispose of all or a substantial portion as part of any Division without financing transaction, but only to the prior written consent extent permitted under the Security Agreement;
(vi) Borrower and its Subsidiaries may grant leases and subleases to other Persons in the ordinary course of Requisite Lendersbusiness not materially interfering with the conduct of the business of Borrower or any of its Subsidiaries; and
(vii) Borrower may consummate the Acquisition.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Subject to subsection 5.2The Borrower shall not, each and shall not permit any of Company and its Consolidated Subsidiaries will not to, enter into any transaction of merger or consolidateconsolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, exchange, lease, lease or sub-leaselease (as lessor or sub-lessor), exchange, transfer or otherwise dispose of, in one transaction or a series of related transactions, all or any portion of its business, assets or property of any kind whatsoever, whether real, personal or fixed assets, mixed and whether tangible or all or any portion of the stock or beneficial ownershipintangible, whether now owned or hereinafter hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, in each case except:
(iA) any Subsidiary of Company the Borrower may be merged or consolidated with or into Company the Borrower or any wholly-owned Subsidiary of Companythe Borrower, (B) any non-wholly-owned Subsidiary of the Borrower may be merged with or into any other non-wholly-owned Subsidiary of the Borrower, (C) any Subsidiary of the Borrower may be liquidated, wound up or dissolved, or all or substantially all any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company the Borrower or any wholly-owned Subsidiary of Companythe Borrower or (D) any non-wholly-owned Subsidiary of the Borrower may be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any other non-wholly-owned Subsidiary of the Borrower; provided thatprovided, in the case of such (x) a merger with the Borrower, the Borrower shall be the continuing or consolidationsurviving Person (except following consummation of the Assurant Reincorporation and upon compliance with Section 5.9(ii), Company or pursuant to which Assurant shall be the continuing and surviving Person), (y) a merger not involving the Borrower and involving a wholly-owned Subsidiary of the Borrower, such wholly-owned Subsidiary shall be the continuing or surviving corporationPerson and (z) any such transaction involving non-wholly-owned Subsidiaries in which the Borrower and its Subsidiaries have different ownership percentages, the transferee, or the continuing or surviving Subsidiary, shall be the non-wholly-owned Subsidiary in which the Borrower and its Subsidiaries have the greater ownership percentage (which percentage shall be unchanged as a result of such transaction);
(ii) sales or other dispositions of assets that do not constitute Asset Sales; provided further that, $650,000,000 CREDIT AGREEMENT
(iii) Asset Sales (the proceeds of which shall be valued at the principal amount thereof in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in the case of other non-Cash proceeds); provided
(1) the consideration received for such a merger or consolidation or disposition assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of a majority directors of the stock of a Borrower or such Subsidiary (or substantially all of the businesssimilar governing body) engaging in such Asset Sale), property or assets (2) no less than 90% of such a Subsidiary (the "AFFECTED SUBSIDIARY") of Company which is a guarantor of any of the Obligationsconsideration shall be paid in Cash, (a) the continuing, surviving or transferee corporation shall expressly assume the obligations of the Affected Subsidiary under such guaranty and (b3) in the case of a merger Subsidiary engaging in such Asset Sale, there shall exist no restriction on the ability of such Subsidiary to dividend or consolidation, otherwise distribute the net worth Net Asset Sale Proceeds thereof to the Borrower and (4) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.4B(ii)(a) of the continuing or surviving corporation (calculated without giving effect to any increase in the amount of intercompany Indebtedness for which the continuing or surviving corporation is liable as compared to the amount of intercompany Indebtedness for which the Affected Subsidiary was liable immediately prior to such merger or consolidation) shall not be less than the net worth of the Affected Subsidiary immediately prior to such merger or consolidation; and provided still further that, subject to the terms of the applicable Collateral Document, in the case of such a merger or consolidation or disposition of a majority of the stock of a Subsidiary or substantially all of the business, property or assets of such a Subsidiary of Company the stock of which is pledged to secure the Obligations, the stock of the continuing, surviving or transferee corporation shall, at the time of consummation of such merger, consolidation or transfer, be pledged to secure the ObligationsOther Bridge Facility;
(iv) sales, transfers or dispositions of Investments permitted to exist in accordance with Section 6.3(i) and (ii), and Investments permitted by Section 6.3(iii);
(v) Company any Insurance Subsidiary may enter into any Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of its existing Insurance Business in accordance with its normal underwriting, indemnity and its Consolidated Subsidiaries may acquire all or substantially all retention policies; and
(vi) Permitted Acquisitions, the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person engaged in businesses substantially similar to those conducted by the Company and its Consolidated Subsidiaries (such asset or stock acquisitions being herein collectively referred to as "ACQUISITIONS"); provided that the purchase price (including all assumed liabilities) paid with respect to Acquisitions made on or after the Closing Date plus the amount of all Investments made under subsection 6.3(vii) consideration for which does not exceed $5,000,000 in the aggregate for all such Acquisitions; provided that in calculating the purchase price of such Acquisitions, the purchase price attributable to any assets acquired in the IT Exchange may be excluded; provided further that to the extent that Company pays all or any portion of the purchase price for an Acquisition through the issuance of shares of Common Stock, the value of the shares of such Common Stock shall be deducted from the calculation of the purchase price payable by Company or its Consolidated Subsidiaries for such Acquisitions for purposes of determining compliance with the provisions of this subsection 6.7(ii); and provided further that any such Person so acquired that constitutes a Material Subsidiary shall execute counterparts of the Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge Agreement as provided in subsection 5.11; and
(iii) Company may sell, exchange or otherwise dispose of assets in Asset Sale transactions; provided that (a) any Asset Sale is made for the fair market value of such assets and for at least eighty-five percent (85%) cash, and (b) the Net Cash Proceeds of each such Asset Sale are applied in conformity with subsection 2.4B(ii)(a); and, provided, further, that Company and its Subsidiaries may not sell, exchange or otherwise dispose of all or a substantial portion of any Division without the prior written consent of Requisite Lendersaggregate.
Appears in 1 contract
Samples: Credit Agreement (Assurant Inc)
