RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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 with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; (ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period; (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; and (v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a).
Appears in 2 contracts
Samples: Credit Agreement (Diamond Brands Operating Corp), Credit Agreement (Diamond Brands Operating Corp)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings No Borrower shall not, and nor shall not any Borrower permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company such Borrower or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessorsub-lessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assetsfixed assets (including without limitation any Accounts or other accounts receivables), whether now owned or 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 with or into Company or any wholly-owned Subsidiary Guarantorof Company, or 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 Company or any wholly-owned Subsidiary Guarantorof Company; provided that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and if any such transaction involves a Subsidiary Guarantor, the surviving corporation shall be the Company or such Subsidiary Guarantor;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired make Consolidated Capital Expenditures permitted by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period7.8;
(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 SalesSales (provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof) and make Investments pursuant to subsection 7.3; and
(iv) Company and its Subsidiaries may make Asset Sales of Real Property Assets located at Xxxxxxx, Pennsylvania and at Westmont, Illinois; provided that -------- (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (xy) the consideration received for such asset therefor shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); and (z) the proceeds Net Asset Sale Proceeds of such Asset Sales shall be applied as mandatory prepayments as required by subsection 2.4B(iii)(a).
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Borrower shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up up, or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or lease, sub-lease (as lessor or sublessor)lease, transfer transfer, or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property property, or fixed assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property property, or fixed assets of, or stock or other evidence of beneficial ownership Stock of, any Person or any division or line of business of any Person, exceptexcept that:
(ia) any Subsidiary of Company Borrower may be merged with or into Company Borrower or any wholly-owned Subsidiary Guarantorof Borrower, or be liquidated, wound up or dissolved, or all or any part of its business, property property, or assets may be conveyed, sold, leased, transferred transferred, or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Subsidiary Guarantorof Borrower; provided that, in the case of such a merger, Company -------- Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company Borrower may merge with or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company into another Person so long as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement exists or under would result therefrom and so long as Borrower shall be the Senior Subordinated Notes shall 142 then exist continuing or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such periodsurviving corporation;
(iiic) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries Companies may sell or otherwise dispose of (i) assets that are obsolete or no longer used or usable in transactions the Companies’ business, (ii) the Stock or assets of any Subsidiary that do is not a Significant Subsidiary, (iii) Stock of any Person that does not constitute Asset Salesa Subsidiary, and (iv) other assets so long as, in the case of sales of assets under this clause (iv), the aggregate consideration during any period of four (4) consecutive Fiscal Quarters (A) for any single sale or disposition (or series of related sales or dispositions) does not exceed five percent (5%) of Gross EBITDA for such four (4) Fiscal Quarters, and (B) for all such sales or dispositions does not exceed ten percent (10%) of Gross EBITDA for such four (4) Fiscal Quarters; provided that -------- the consideration received for all such assets shall be in an amount at least equal to the fair market value thereof;
(d) the Companies may sell or otherwise dispose of their Real Estate Investments;
(e) the Companies may make Investments permitted by Section 6.2;
(f) the Companies may make Permitted Acquisitions and acquisitions which constitute Real Estate Investments; and
(vg) Company and its Subsidiaries the Companies may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a)Permitted Distributions.
Appears in 1 contract
Samples: Credit Agreement (Trammell Crow Co)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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 with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION")make Consolidated Capital Expenditures permitted under subsection 7.8; provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period;
REVOLVING LOAN CREDIT AGREEMENT EXECUTION 124 132 (iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company business and its Subsidiaries may sell any assets acquired in connection with the acquisition of another Person or otherwise dispose a division or line 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; and
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee business of such Assets pursuant to a customary novation agreement that releases Person which the Company or such Subsidiary from further liability, and any promissory notes received that reasonably determines are converted into Cash, shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a).surplus assets;
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (a) any Restricted Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary GuarantorGuarantor and (b) in connection with any Permitted Acquisition, Company or any Subsidiary Guarantor may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided that, in the case of such a -------- merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) subject to subsection 7.7 (vi), Company and its wholly-owned Restricted Subsidiaries may acquire all make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company and its Restricted Subsidiaries may 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, or any division or line of business of any Person, in the Business ordinary course of business;
(iv) Company and its Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided -------- 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 Restricted Subsidiaries may make Asset Sales of assets having a business incidental or related thereto (collectively, "PERMITTED ACQUISITION")fair market value not in excess of $10,000,000; 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 such Asset Sales shall be applied as required by subsection 2.4B(iii)(a); and
(a) -------- immediately prior to and after giving effect to any such acquisition, Company and its Restricted Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) such Person becomes a wholly-owned Restricted Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Restricted Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; ;
(c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisitionacquisition, Company shall deliver to Administrative Agent an Officer's Officers' Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisitionacquisition, (2) demonstrating that after giving effect to such Permitted Acquisition acquisition and to all Indebtedness to be incurred or assumed or repaid in connection with or as consideration for such Permitted Acquisitionacquisition, that Company is in pro --- forma compliance with the financial --- ----- covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and thatacquisition, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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 (4) delivering a copy of all environmental reports obtained in connection with such acquisition, and (ii) if the aggregate consideration paid by Company and its Restricted Subsidiaries in connection with such proposed acquisition and any other related series of acquisitions(including without limitation earn outs or deferred compensation or non-competition arrangements and the amount of Indebtedness or other liability assumed by Company or any of its Restricted Subsidiaries) exceeds $20,000,000, then (v) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such periodperiod and for the fiscal year immediately preceding such fiscal year, (w) unaudited interim financial statements (consisting of a balance sheet and statements of income, stockholders' equity and cash flows) of the Person or business so acquired for the fiscal periods most recently ended prior to the proposed acquisition, (x) a pro forma balance sheet of Company and its Subsidiaries as of --- ----- the date of the proposed acquisition after giving effect thereto, (y) projected financial statements (including balance sheets and statements of income, stockholders' equity and cash flows) of Company and its Subsidiaries for the five-year period after the date of the proposed acquisition after giving effect thereto, 118 and (z) such other information as Administrative Agent may reasonably request;
(iiid) Company shall, and shall cause its Restricted Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 with respect to such acquisitions;
(e) the aggregate consideration paid by Company and its Restricted Subsidiaries in connection with such proposed acquisition and any other related series of acquisitions (including without limitation earn outs or deferred compensation or non-competition arrangements and the amount of Indebtedness or other liability assumed by Company or any of its Subsidiaries) shall not exceed $50,000,000; and
(vii) 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; and
(v) Company and its Restricted Subsidiaries may make Asset Sales transfers of any of their properties or assets having a fair market value not to another Person in excess of $3,000,000 transactions in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75which 80% of the consideration received therefor is by the transferor consists of properties or assets (other than Cash) that will be used in the form business of Cash the transferor; provided -------- that (provided that -------- any liabilities which are assumed i) the aggregate fair market value (as determined in good faith by the transferee Board of such Assets pursuant to a customary novation agreement that releases Directors of Company) of the property or assets being transferred by Company or such Restricted Subsidiary from further liabilityis not greater than the aggregate fair market value (as determined in good faith by the Board of Directors of Company), of the property or assets received by Company or such Restricted Subsidiary in such exchange and (ii) the aggregate fair market value (as determined in good faith by the Board of Directors of Company) of all property or assets transferred by Company and any promissory notes received that are converted into Cash, of its Restricted Subsidiaries in connection with such exchanges in any Fiscal Year shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a)not exceed $20,000,000.
Appears in 1 contract
Samples: Credit Agreement (Sandhills Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings No Borrower shall not, and nor shall not any Borrower permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company such Borrower or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessorsub-lessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or fixed assets, whether now owned or 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 with or into Company or any wholly-owned Subsidiary Guarantorof Company, or 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 Company or any wholly-owned Subsidiary Guarantorof Company; provided PROVIDED that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and if any such transaction involves a Subsidiary Guarantor, the surviving corporation shall be the Company or such Subsidiary Guarantor;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired make Consolidated Capital Expenditures permitted by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period7.8;
(iii) Company may make Asset Sales of (a) Secured Customer Financing Arrangements and (b) accounts receivable of Company, together having a fair market value not in excess of $30,000,000 for any given Fiscal Year; PROVIDED that (1) such Asset Sale shall be non-recourse to Company and its Subsidiaries may dispose Subsidiaries, (2) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (3) after giving PRO FORMA effect to such Asset Sale the aggregate net accounts receivable for Company is not less than $150,000,000; PROVIDED FURTHER that up to $30,000,000 of obsolete, worn out or surplus property Net Asset Sale Proceeds received by Company from Asset Sales of Secured Customer Financing Arrangements and/or accounts receivable of Company permitted under this subsection 7.7(iii) shall be excluded from the requirements of this subsection 2.4A(iii)(a) so long as Company is in compliance with clause (3) of the ordinary course of businessimmediately preceding proviso;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset SalesSales (PROVIDED that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof) and make Investments pursuant to subsection 7.3; provided and
(v) subject to subsection 7.11, Company and its Subsidiaries may make Asset Sales of (a) the apartment buildings located in Sayama, Japan, and (b) other assets having a fair market value not in excess of $5,000,000 for any given Fiscal Year and $10,000,000 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; and
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (xy) the consideration received for such asset therefor shall be in an -------- amount at least equal 85% in cash and the balance of any consideration not received as cash shall be represented by promissory notes which shall be pledged to Administrative Agent pursuant to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision)applicable Collateral Documents; and (z) the proceeds Net Asset Sale Proceeds of such Asset Sales shall be applied as mandatory prepayments as required by subsection 2.4B(iii)(a2.4A(iii)(a) in an amount equal to such Net Asset Sale Proceeds; PROVIDED, HOWEVER, that up to $10,000,000 of Net Asset Proceeds of such Asset Sales received by Borrowers and their respective Subsidiaries shall be used to prepay Loans, but shall not be required to be used to permanently reduce Revolving Loan Commitments pursuant to subsection 2.4A(iii)(a), so long as such proceeds are reinvested by the applicable Borrower or Subsidiary within 180 days after receipt of such proceeds in similar assets of similar fair market value.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Goss Graphic Systems Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or lease, sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or fixed assets, whether now owned or 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, exceptexcept that:
(i) any Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantorof Company, 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 Company or any wholly-owned Subsidiary Guarantorof Company; provided PROVIDED that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default make Consolidated Capital Expenditures permitted under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period6.8;
(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 PROVIDED that -------- the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(iv) subject to subsection 6.12, 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; and
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the sole consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision)Cash; and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(v) Company may make the Doppelt Acquisition; and
(vi) Company may make Permitted Acquisitions, PROVIDED THAT any acquisitions or series of acquisitions that require expenditures exceeding $3,500,000 in the aggregate, shall require the prior written consent of Requisite Lenders, which shall not be unreasonably withheld.
Appears in 1 contract
Samples: Credit Agreement (Trammell Crow Co)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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, or operating unit, business unit or technology unit of any Person, except:
(i) (a) any Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and (b) any Immaterial Subsidiary of Company may be merged with or into any wholly-owned Immaterial Subsidiary of Company, 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 Immaterial Subsidiary;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default make Consolidated Capital Expenditures permitted under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period7.8;
(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) so long as no Event of Default has occurred and is continuing or would be caused thereby, Company and its Subsidiaries may consummate the Acquisition and may make Permitted Acquisitions; provided that Company shall comply with any requirements set forth herein (including under subsection 6.1(xviii)) and, to the extent such Permitted Acquisition is of the equity interest of any Person, such Person shall be a Subsidiary of Company upon giving effect to such Permitted Acquisition or shall be merged with and into Company or one of its Subsidiaries within two days of the consummation of such Permitted Acquisition; provided further that, notwithstanding anything in the foregoing to the contrary, (a) during the 180 day period following the Closing Date, Company and its Subsidiaries may not make (1) more than two Permitted Acquisitions and (2) any Permitted Acquisition in one or a series of related transactions if (x) the aggregate purchase price of such Permitted Acquisition exceeds $50,000,000 or (y) the aggregate purchase price of all such Permitted Acquisitions during such 180 day period exceeds $75,000,000; and (b) from and after the 181st day following the Closing Date, Company and its Subsidiaries shall not make any Permitted Acquisition in one or a series of related transactions if (A) the aggregate 122 purchase price of such Permitted Acquisition exceeds $25,000,000 or (B) the aggregate purchase price of all such Permitted Acquisitions since such 181st day exceeds $35,000,000; and
(vvi) subject to subsection 7.13 and so long as no Event of Default has occurred and is continuing or would be caused thereby, (a) PSL may make Asset Sales in respect of the property and business located in Lincoln, England as more fully described on Schedule 5.5 annexed hereto, (b) Company and its Subsidiaries may make Asset Sales in connection with the closing of offices of Company and its Subsidiaries which offices were made redundant to the business of Company and its Subsidiaries as a result of the Acquisition as determined by the Board of Directors of Company and (c) Company and its Subsidiaries may make other Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year25,000,000; provided that (x) the consideration received for such asset any assets in the foregoing clauses (a) through (c) above shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the sole consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision)cash; and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a).
Appears in 1 contract
Samples: Credit Agreement (Mitel Corp)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or lease, sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially sub- stantially 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 in the ordinary course of such Person's business or except:
(i) any Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantorof Company, 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 Company or any wholly-owned Subsidiary Guarantorof Company; provided thatPROVIDED THAT, in the case of any such a mergermerger or other transaction or series of transactions involving Company, Company -------- or such wholly-owned Subsidiary Guarantor shall must be the continuing or surviving corporation;
(ii) with respect to Facilities which are otherwise sold or transferred as permitted under this Agreement, the Subsidiaries of Company which owned such Facility, and its wholly-owned Subsidiaries any direct parent thereof (other than Company) may acquire all be dissolved 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 the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned merged into another Subsidiary of Company or Company, PROVIDED THAT all of the assets of the Subsidiary being dissolved or such business, property or other assets merged are acquired by first distributed to Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of CompanySubsidiary; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period;and
(iii) Company and its Subsidiaries may dispose of obsoletesell any individual Facility, worn out or surplus property portions thereof, in bona-fide third party transactions. In addition, Company shall not amend, modify, supplement or terminate 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; and
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 Administrative Services Agreement in any Fiscal Year; provided that way which might have a Material Adverse Effect (x) including an amendment, modification or supplement which would alter the consideration received provisions for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% reimbursement of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed BMC by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(aits Subsidiaries).
Appears in 1 contract
Samples: Convertible Term Loan Agreement (Banyan Strategic Realty Trust)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessorsub-lessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part substantially all of its business, property or fixed assets, whether now owned or 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 wholly-owned Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantorof Company, or 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 Company or any wholly-owned Subsidiary Guarantorof Company; provided that, in the case of such -------- a mergermerger described in the foregoing clause (a) or (b), Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period;
(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; andthereof (as reasonably determined by the Board of Directors of Company);
(viii) Company and its Subsidiaries may make Permitted Acquisitions and Permitted Investments; provided that (i) Company and its Subsidiaries -------- shall not make Permitted Acquisitions and Permitted Investments in an aggregate amount (net of the amount of loans, advances and Contingent Obligations constituting Permitted Investments that are repaid, released or cancelled, as the case may be, during the term of this Agreement) in excess of $200,000,000 or the equivalent amount in any other currency during the term of this Agreement and (ii) Company's non-wholly owned Subsidiaries shall not make Permitted Investments and Permitted Acquisitions in an aggregate amount (net of the amount of loans, advances and Contingent Obligations constituting such Permitted Investments that are repaid, released or cancelled, as the case may be, during the term of this Agreement) in excess of $20,000,000 or the equivalent amount in any other currency during the term of this Agreement; and provided further that if -------- ------- Company and its Subsidiaries have made Permitted Investments and Permitted Acquisitions equal to $200,000,000 or the equivalent amount in any other currency and the Leverage Ratio is less than 4.0:1.00, Company and its wholly-owned Subsidiaries may make additional Permitted Investments and Permitted Acquisitions until the Leverage Ratio is greater than or equal to 4.0:1.00; 117
(iv) Company and its Subsidiaries may make Asset Sales in compliance with subsection 2.4A(iii); and
(v) Company may cause the dissolution of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal Subsidiary to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required extent permitted by subsection 2.4B(iii)(a)6.2.
Appears in 1 contract
Samples: Credit Agreement (LTM Holdings Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or lease, sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any substantial part of its business, property or fixed assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all 50% or substantially all more 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 Subsidiary of Company (other than a Guarantor) may be merged with or into Company or any wholly-owned Subsidiary Guarantorof Company, 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 Company or any wholly-owned Subsidiary Guarantorof Company; provided that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation; provided further if any Guarantor or grantor under a Collateral Document is the disappearing entity in a merger with a wholly-owned Subsidiary that is not a Guarantor or grantor, the surviving corporation shall execute a Guaranty and/or a Subsidiary Security Agreement, as the case may be;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and may change its legal structure so long as (X) any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries modification does not exceed (1) for in any single Permitted Acquisition, manner impair any Lender's ability to realize the Collateral owned by such Subsidiary upon an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3Y) delivering if such Subsidiary is the disappearing entity in a copymerger devised to effect such a structural change, prepared in conformity with GAAPthe surviving entity shall execute a Guaranty and/or a Subsidiary Security Agreement, of (i) financial statements of as 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 periodcase may be;
(iii) Company subject to subsections 7.11 and its Subsidiaries may dispose of obsolete2.4A(ii), 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; and
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year5,000,000 on an individual basis; provided that that, with respect to the sale of any asset having a fair market value equal to or exceeding $2,500,000, (x) the consideration received for such asset assets shall be in an -------- amount at least equal to the fair market value thereof; thereof and (y) at least 75% eighty percent (80%) of the consideration considera- tion received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed Cash;
(iv) Company and its Subsidiaries may make acquisitions of Securities issued by Company consistent with subsection 7.5; and
(v) RBI may convey real property to be cash for purposes PMH or PMHLP or the Riverside Joint Venture in connection with the operation of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a)Maryland Heights Facility.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Company's Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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) (a) any Domestic Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided PROVIDED that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and (b) any Foreign Subsidiary may be merged with or into another Foreign Subsidiary or, so long as the surviving corporation of such merger is Company or a Domestic Subsidiary, with or into the Company or any Domestic 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 Company, a Subsidiary Guarantor or another Foreign Subsidiary, PROVIDED, that notwithstanding the above, a Subsidiary may only liquidate or dissolve into, or merge with and into, another Subsidiary if, after giving effect to such combination or merger, Company continues to own (directly or indirectly), and Administrative Agent continues to have pledged to it pursuant to the DAH Pledge Agreement or Subsidiary Pledge Agreement, a percentage of the issued and outstanding equity Securities (on a fully diluted basis) of the Subsidiary surviving such combinations or merger that is equal to or in excess of the percentage of the issued and outstanding shares of equity Securities (on a fully diluted basis) of the Subsidiary that does not survive such combinations or merger that was (immediately prior to the combination or merger) owned by the Company or pledged to Administrative Agent;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default make Consolidated Capital Expenditures permitted under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period7.8;
(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 consummate any transfer, conveyance or other disposal that constitutes (a) an Investment permitted under subsection 7.3, (b) a Lien permitted under subsection 7.2, (c) a Restricted Junior Payment permitted under subsection 7.5 or (d) a sale and leaseback transaction permitted by subsection 7.10;
(v) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(vi) Finance Co., Acquisition Co. and DAH may consummate the Merger and the Second Merger; 110
(vii) (x) Company and its Subsidiaries may make Permitted Acquisitions; provided that -------- such Permitted Acquisitions result in the Company or the relevant Subsidiary acquiring a majority controlling interest in the Person (or its assets and businesses) acquired, or increasing any such controlling interest maintained by it in such Person or result in the Person acquired becoming an Acquired Controlled Person with respect to Company and its Subsidiaries; and (y) no later than five Business Days prior to the consummation thereof, Company delivers to Agents a Permitted Acquisition Compliance Certificate demonstrating compliance with the requirements of the definition of "Permitted Acquisition" and copies of all acquisition agreements executed and delivered in connection therewith to the extent available and requested by Administrative Agent; and PROVIDED FURTHER that reasonably promptly following the consummation of such Permitted Acquisition, Company shall have complied with the provisions of subsections 6.8 and 6.9 with respect thereto to the extent applicable;
(viii) Prior to the consummation of the Merger, Company or any of its Subsidiaries may convey, sell, transfer or otherwise dispose 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;
(ix) Company and its Subsidiaries may sell or otherwise dispose of assets as a result of any taking of assets described in clause (ii) of the definition of "Net Insurance/Condemnation Proceeds", so long as the Net Insurance/Condemnation Proceeds resulting therefrom are applied or reinvested as required by subsection 2.4B(iii)(b);
(x) Company and its Subsidiaries may sell or discount overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof;
(xi) Company and its Subsidiaries may make Asset Sales to Non-Wholly-Owned Subsidiaries that are not Subsidiary Guarantors of assets having a fair market value of not in excess of $10,000,000 in the aggregate for all such Asset Sales made after the Closing Date; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, and (y) any Investment in such Non-Wholly-Owned Subsidiaries resulting from such Asset Sale shall be permitted by subsection 7.3(xiii) or as a Permitted Acquisition pursuant to subsection 7.3 (viii); and
(vxii) Company and its Subsidiaries may make Asset Sales not permitted by the foregoing clauses of assets having a fair market value of not in excess of $3,000,000 5,000,000 in any Fiscal YearYear or of $10,000,000 in the aggregate for all such Asset Sales made after the Closing Date; provided that (x) the consideration received for such asset assets shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision)cash; and (z) the proceeds of such Asset Sales shall be Sale are applied or reinvested as required by subsection 2.4B(iii)(a).
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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) Company and Merger Sub may consummate the Acquisition and the Merger;
(ii) any Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; , provided that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;; 102
(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) Company and its Subsidiaries may make Asset Sales of assets having a fair market value of not in excess of $10,000,000 during any Fiscal Year, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); and (zb) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a); and
(vi) subject to subsection 6.7, Company and its Subsidiaries may acquire by purchase or otherwise (each, a "Subsequent Acquisition") all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person (other than Xxxxxxxx-Xxxxx) or any division or line of business of any Person (other than Xxxxxxxx-Xxxxx), provided that (a) the sum of the aggregate Total Purchase Price of all Subsequent Acquisitions and the aggregate amount of all Investments made pursuant to subsection 7.3(xiii) does not exceed $10,000,000 in any Fiscal Year or $30,000,000 in the aggregate during the term of this Agreement and (b) Company shall have delivered a Compliance Certificate to Administrative Agent demonstrating that, after giving effect to such proposed Subsequent Acquisition, the Leverage Ratio is less than 2.25 to 1.00.
Appears in 1 contract
Samples: Credit Agreement (Urs Corp /New/)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings The Borrower shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessorsub-lessor), exchange, transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part portion of its business, assets or property of any kind whatsoever, whether real, personal or assetsmixed and whether tangible or intangible, whether now owned or 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 with or into Company the Borrower or any wholly-owned Subsidiary Guarantorof the 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 any part of its business, property or assets $1,100,000,000 CREDIT AGREEMENT may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to the Borrower or any wholly-owned Subsidiary of the 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 Company or any other non-wholly-owned Subsidiary Guarantorof the Borrower; provided thatprovided, in the case of such (x) a mergermerger with the Borrower, Company -------- or such wholly-owned Subsidiary Guarantor the Borrower shall be the continuing or surviving corporation;
Person (iiexcept following consummation of the Assurant Reincorporation and upon compliance with Section 5.9(iii), pursuant to which Assurant shall be the continuing and surviving Person), (y) Company a merger not involving the Borrower and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes involving a wholly-owned Subsidiary of Companythe Borrower, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; the continuing or surviving Person and (bz) any such transaction involving non-wholly-owned Subsidiaries in which the aggregate consideration paid by Company or any of Borrower and its Subsidiaries does not exceed (1) for any single Permitted Acquisitionhave different ownership percentages, an amount equal to $25,000,000 consisting of cash considerationthe transferee, Indebtedness or the continuing or surviving Subsidiary, shall be the non-wholly-owned Subsidiary in which the Borrower and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) concurrently with the consummation of such Permitted Acquisition, Company shall, and shall cause its Subsidiaries to, comply with have the requirements of subsections 6.8 and 6.9 with respect to such Permitted Acquisitions; and greater ownership percentage (d) prior to the consummation of such Permitted Acquisition, Company which percentage shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur be unchanged as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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 transaction);
(ii) audited sales or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period;
(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 other dispositions of assets in transactions that do not constitute Asset Sales;
(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 that -------- provided
(1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
thereof (v) Company and its Subsidiaries may make Asset Sales determined in good faith by the board of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% directors of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company Borrower or such Subsidiary from further liability(or similar governing body) engaging in such Asset Sale), and any promissory notes received that are converted into (2) no less than 90% of such consideration shall be paid in Cash, (3) in the case of a Subsidiary engaging in such Asset Sale, there shall be deemed exist no restriction on the ability of such Subsidiary to be cash for purposes of this provision); dividend or otherwise distribute the Net Asset Sale Proceeds thereof to the Borrower and (z4) the proceeds of such Net Asset Sales Sale Proceeds thereof shall be applied as required by subsection 2.4B(iii)(aSection 2.4B(ii)(a).;
(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) 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 retention policies; and
(vi) Permitted Acquisitions, the consideration for which does not exceed $5,000,000 in the aggregate. 71 $1,100,000,000 CREDIT AGREEMENT
Appears in 1 contract
Samples: Credit Agreement (Assurant Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Restricted Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (a) any Restricted Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary GuarantorGuarantor and (b) in connection with any Permitted Acquisition, Company or any Subsidiary Guarantor may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation or that such continuing or surviving corporation shall be a wholly-owned Subsidiary of Company and shall comply with subsections 6.8 and 6.9 hereof;
(ii) subject to subsection 7.7 (vi), Company and its wholly-owned Restricted Subsidiaries may acquire all make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company and its Restricted Subsidiaries may 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, or any division or line of business of any Person, in the Business ordinary course of business;
(iv) Company and its Restricted 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 Restricted Subsidiaries may make Asset Sales of (a) assets having a business incidental or related thereto fair market value not in excess of $10,000,000 and (collectively, "PERMITTED ACQUISITION")b) sale/leasebacks permitted by subsection 7.9; 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); and
(vi) Company or any Restricted Subsidiary of Company may make non-hostile acquisitions of assets and businesses (including non-hostile acquisitions of the capital stock or other equity interests of another Person); provided that:
(a) -------- immediately prior to and after giving effect to any such acquisition, Company and its Restricted Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) such Person becomes a wholly-owned Restricted Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Restricted Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; ;
(c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisitionacquisition, Company shall deliver to Administrative Agent (1) an Officer's Officers' Certificate (1i) certifying that no Potential 107 Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, acquisition and (2ii) demonstrating that after giving effect to such Permitted Acquisition acquisition and to all Indebtedness to be incurred or assumed or repaid in connection with or as consideration for such Permitted Acquisitionacquisition, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition acquisition, provided that with respect to any acquisition consummated during the second Fiscal Quarter in Fiscal Year 1999 for purposes of determining such pro forma compliance, Consolidated Pro Forma EBITDA for the four consecutive Fiscal Quarter period ended as of the last day of the first Fiscal Quarter in Fiscal Year 1999 shall be adjusted by adding back to Consolidated EBITDA for the first Fiscal Quarter in Fiscal Year 1999 the amounts set forth on Schedule 1.1 for the second Fiscal Quarter in Fiscal Year 1999, (2) a copy of all environmental reports obtained in connection with such acquisition and thatdelivering a copy of the principal documents (e.g., giving effect purchase agreement, merger agreement) related to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitionsacquisition, and (3) delivering a copy, prepared in conformity with GAAP, 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 clauseclause (and if an asset purchase, pro forma financial statements on a historical basis), and (ii) if the aggregate consideration paid by Company and its Restricted Subsidiaries in connection with such proposed acquisition and any other related series of acquisitions (including without limitation earn outs or deferred compensation or non-competition arrangements and the amount of Indebtedness or other liability assumed by Company or any of its Restricted Subsidiaries) exceeds $20,000,000, then (u) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such periodperiod and for the fiscal year immediately preceding such fiscal year, (v) unaudited interim financial statements (consisting of a balance sheet and statements of income, stockholders' equity and cash flows) of the Person or business so acquired for the fiscal periods most recently ended prior to the proposed acquisition, (w) a pro forma balance sheet of Company and its Subsidiaries as of the date of the proposed acquisition after giving effect thereto, (x) projected financial statements (including balance sheets and statements of income, stockholders' equity and cash flows) of Company and its Subsidiaries for the five-year period after the date of the proposed acquisition after giving effect thereto and (y) such other information as Administrative Agent may reasonably request;
(iiid) Company shall, and shall cause its Restricted Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 with respect to such acquisitions;
(i) excluding the Target Company Acquisition, the aggregate consideration paid by Company and its Restricted Subsidiaries in connection with such proposed acquisition and any other related series of acquisitions (including without limitation earn outs or deferred compensation or non-competition arrangements and the amount of Indebtedness or other liability assumed by 108 Company or any of its Subsidiaries) shall not exceed $50,000,000; and (ii) Company may make the Target Company Acquisition for an aggregate consideration which does not exceed $94,000,000 plus the purchase price adjustment contemplated by the Target Company Purchase Agreement; and
(vii) 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; and
(v) Company and its Restricted Subsidiaries may make Asset Sales transfers of any of their properties or assets having a fair market value not to another Person in excess of $3,000,000 transactions in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75which 80% of the consideration received therefor is by the transferor consists of properties or assets (other than Cash) that will be used in the form business of Cash (the transferor; provided that -------- any liabilities which are assumed (i) the aggregate fair market value (as determined in good faith by the transferee Board of such Assets pursuant to a customary novation agreement that releases Directors of Company) of the property or assets being transferred by Company or such Restricted Subsidiary from further liabilityis not greater than the aggregate fair market value (as determined in good faith by the Board of Directors of Company), of the property or assets received by Company or such Restricted Subsidiary in such exchange and (ii) the aggregate fair market value (as determined in good faith by the Board of Directors of Company) of all property or assets transferred by Company and any promissory notes received that are converted into Cash, of its Restricted Subsidiaries in connection with such exchanges in any Fiscal Year shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a)not exceed $20,000,000.
Appears in 1 contract
Samples: Credit Agreement (Pantry Inc)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Company's Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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) Company may consummate the Empress Acquisition;
(ii) any Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;; 104 113
(iiiii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default make expenditures permitted under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period7.8;
(iiiiv) Company and its Subsidiaries may dispose of obsolete, worn out out, or surplus property in the ordinary course of business;
(ivv) 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; and
(vvi) Company and its Subsidiaries may make Excluded Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a)Sales.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessorsub-lessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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 with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default make Consolidated Capital Expenditures permitted under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such periodSection 6.8;
(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 be, in the reasonable judgment of the Agent, in an amount at least equal to the fair market value thereof; and
(v) the Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liabilitywind-up, and any promissory notes received that are converted into Cashsell the assets of, shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a)Company's mobile diagnostic division.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Company's Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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) (a) any Domestic Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided PROVIDED that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and (b) any Foreign Subsidiary may be merged with or into another Foreign Subsidiary or, so long as the surviving corporation of such merger is Company or a Domestic Subsidiary, with or into the Company or any Domestic 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 Company, a Subsidiary Guarantor or another Foreign Subsidiary, PROVIDED, that notwithstanding the above, a Subsidiary may only liquidate or dissolve into, or merge with and into, another Subsidiary if, after giving effect to 118 such combination or merger, Company continues to own (directly or indirectly), and Administrative Agent continues to have pledged to it pursuant to the DAH Pledge Agreement or Subsidiary Pledge Agreement, a percentage of the issued and outstanding equity Securities (on a fully diluted basis) of the Subsidiary surviving such combinations or merger that is equal to or in excess of the percentage of the issued and outstanding shares of equity Securities (on a fully diluted basis) of the Subsidiary that does not survive such combinations or merger that was (immediately prior to the combination or merger) owned by the Company or pledged to Administrative Agent;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default make Consolidated Capital Expenditures permitted under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period7.8;
(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 consummate any transfer, conveyance or other disposal that constitutes (a) an Investment permitted under subsection 7.3, (b) a Lien permitted under subsection 7.2, (c) a Restricted Junior Payment permitted under subsection 7.5 or (d) a sale and leaseback transaction permitted by subsection 7.10;
(v) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(vi) Finance Co., Acquisition Co. and DAH may consummate the Merger and the Second Merger;
(vii) (x) Company and its Subsidiaries may make Permitted Acquisitions; PROVIDED that such Permitted Acquisitions result in the Company or the relevant Subsidiary acquiring a majority controlling interest in the Person (or its assets and businesses) acquired, or increasing any such controlling interest maintained by it in such Person or result in the Person acquired becoming an Acquired Controlled Person with respect to Company and its Subsidiaries; and (y) no later than five Business Days prior to the consummation thereof, Company delivers to Agents a Permitted Acquisition Compliance Certificate demonstrating compliance with the requirements of the definition of "Permitted Acquisition" and copies of all acquisition agreements executed and delivered in connection therewith to the extent available and requested by Administrative Agent; and PROVIDED FURTHER that reasonably promptly following the consummation of such Permitted Acquisition, Company shall have complied with the provisions of subsections 6.8 and 6.9 with respect thereto to the extent applicable;
(viii) Prior to the consummation of the Merger, Company or any of its Subsidiaries may convey, sell, transfer or otherwise dispose 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;
(ix) Company and its Subsidiaries may sell or otherwise dispose of assets as a result of any taking of assets described in clause (ii) of the definition of "Net Insurance/Condemnation Proceeds", so long as the Net Insurance/Condemnation Proceeds resulting therefrom are applied or reinvested as required by subsection 2.4B(iii)(b); 119
(x) Company and its Subsidiaries may sell or discount overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof;
(xi) Company and its Subsidiaries may make Asset Sales to Non-Wholly-Owned Subsidiaries that are not Subsidiary Guarantors of assets having a fair market value of not in excess of $10,000,000 in the aggregate for all such Asset Sales made after the Closing Date; provided that -------- (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, and (y) any Investment in such Non-Wholly-Owned Subsidiaries resulting from such Asset Sale shall be permitted by subsection 7.3(xiii) or as a Permitted Acquisition pursuant to subsection 7.3 (viii); and
(vxii) Company and its Subsidiaries may make Asset Sales not permitted by the foregoing clauses of assets having a fair market value of not in excess of $3,000,000 5,000,000 in any Fiscal YearYear or of $10,000,000 in the aggregate for all such Asset Sales made after the Closing Date; provided PROVIDED that (x) the consideration received for such asset assets shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision)cash; and (z) the proceeds of such Asset Sales shall be Sale are applied or reinvested as required by subsection 2.4B(iii)(a).
Appears in 1 contract
Samples: Increased Commitments Agreement (Decrane Holdings Co)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Company's Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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) (a) any Domestic Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided PROVIDED that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and (b) any Foreign Subsidiary may be merged with or into another Foreign Subsidiary or, so long as the surviving corporation of such merger is Company or a Domestic Subsidiary, with or into the Company or any Domestic 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 Company, a Subsidiary Guarantor or another Foreign Subsidiary, PROVIDED, that notwithstanding the above, a Subsidiary may only liquidate or dissolve into, or merge with and into, another Subsidiary if, after giving effect to such combination or merger, Company continues to own (directly or indirectly), and Administrative Agent continues to have pledged to it pursuant to the DAH Pledge Agreement or Subsidiary Pledge Agreement, a percentage of the issued and outstanding equity Securities (on a fully diluted basis) of the Subsidiary surviving such combinations or merger that is equal to or in excess of the percentage of the issued and outstanding shares of equity Securities (on a fully diluted basis) of the Subsidiary that does not survive such combinations or merger that was (immediately prior to the combination or merger) owned by the Company or pledged to Administrative Agent;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default make Consolidated Capital Expenditures permitted under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period7.8;
(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 consummate any transfer, conveyance or other disposal that constitutes (a) an Investment permitted under subsection 7.3, (b) a Lien permitted under subsection 7.2, (c) a Restricted Junior Payment permitted under subsection 7.5 or (d) a sale and leaseback transaction permitted by subsection 7.10;
(v) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(vi) Finance Co., Acquisition Co. and DAH may consummate the Merger and the Second Merger;
(vii) (x) Company and its Subsidiaries may make Permitted Acquisitions; PROVIDED that such Permitted Acquisitions result in the Company or the relevant Subsidiary acquiring a majority controlling interest in the Person (or its assets and businesses) acquired, or increasing any such controlling interest maintained by it in such Person or result in the Person acquired becoming an Acquired Controlled Person with respect to Company and its Subsidiaries; and (y) no later than five Business Days prior to the consummation thereof, Company delivers to Agents a Permitted Acquisition 115 Compliance Certificate demonstrating compliance with the requirements of the definition of "Permitted Acquisition" and copies of all acquisition agreements executed and delivered in connection therewith to the extent available and requested by Administrative Agent; and PROVIDED FURTHER that reasonably promptly following the consummation of such Permitted Acquisition, Company shall have complied with the provisions of subsections 6.8 and 6.9 with respect thereto to the extent applicable;
(viii) Prior to the consummation of the Merger, Company or any of its Subsidiaries may convey, sell, transfer or otherwise dispose 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;
(ix) Company and its Subsidiaries may sell or otherwise dispose of assets as a result of any taking of assets described in clause (ii) of the definition of "Net Insurance/Condemnation Proceeds", so long as the Net Insurance/Condemnation Proceeds resulting therefrom are applied or reinvested as required by subsection 2.4B(iii)(b);
(x) Company and its Subsidiaries may sell or discount overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof;
(xi) Company and its Subsidiaries may make Asset Sales to Non-Wholly-Owned Subsidiaries that are not Subsidiary Guarantors of assets having a fair market value of not in excess of $10,000,000 over 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, and (y) any Investment in such Non-Wholly-Owned Subsidiaries resulting from such Asset Sale shall be permitted by subsection 7.3(xiii) or as a Permitted Acquisition pursuant to subsection 7.3 (viii); and
(vxii) Company and its Subsidiaries may make Asset Sales not permitted by the foregoing clauses of assets having a fair market value of not in excess of $3,000,000 5,000,000 in any Fiscal YearYear or of $10,000,000 in the aggregate for all such Asset Sales made after the Closing Date; provided PROVIDED that (x) the consideration received for such asset assets shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision)cash; and (z) the proceeds of such Asset Sales shall be Sale are applied or reinvested as required by subsection 2.4B(iii)(a).
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Borrower shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up up, or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or lease, sub-lease (as lessor or sublessor)lease, transfer transfer, or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property property, or fixed assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property property, or fixed assets of, or stock or other evidence of beneficial ownership Stock of, any Person or any division or line of business of any Person, exceptexcept that:
(ia) any Subsidiary of Company Borrower may be merged with or into Company Borrower or any wholly-owned Subsidiary Guarantorof Borrower, or be liquidated, wound up or dissolved, or all or any part of its business, property property, or assets may be conveyed, sold, leased, transferred transferred, or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Subsidiary Guarantorof Borrower; provided thatPROVIDED THAT, in the case of such a merger, Company -------- Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company Borrower may merge with or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that into another Person SO LONG AS no Potential Event of Default or Event of Default under this Agreement exists or under would result therefrom AND SO LONG AS Borrower shall be the Senior Subordinated Notes shall 142 then exist continuing or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such periodsurviving corporation;
(iiic) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries Companies may sell or otherwise dispose of (i) assets that are obsolete or no longer used or usable in transactions the Companies' business, (ii) the Stock or assets of any Subsidiary that do is not a Significant Subsidiary, (iii) Stock of any Person that does not constitute Asset Salesa Subsidiary, and (iv) other assets SO LONG AS, in the case of sales of assets under this CLAUSE (iv), the aggregate consideration during any period of four (4) consecutive Fiscal Quarters (A) for any single sale or disposition (or series of related sales or dispositions) does not exceed five percent (5%) of Gross EBITDA for such four (4) Fiscal Quarters, and (B) for all such sales or dispositions does not exceed ten percent (10%) of Gross EBITDA for such four (4) Fiscal Quarters; provided that -------- PROVIDED THAT the consideration received for all such assets shall be in an amount at least equal to the fair market value thereof;
(d) the Companies may sell or otherwise dispose of their Real Estate Investments; AMENDED AND RESTATED CREDIT AGREEMENT 55
(e) the Companies may make Investments permitted by SECTION 6.2; and
(vf) Company and its Subsidiaries the Companies may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a)Permitted Acquisitions.
Appears in 1 contract
Samples: Credit Agreement (Trammell Crow Co)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor)other 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 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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 may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided -------- that, in the case of such a merger involving Company, Company shall be the continuing or surviving corporation, and in the case of any other such merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, make Consolidated Capital Expenditures in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary ordinary course of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period;
(iii) Company and its Subsidiaries may dispose of obsolete, 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 Sales; 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 7.12, Company and its Subsidiaries may make Asset Sales of assets having a an aggregate fair market value not in excess of $3,000,000 in any Fiscal Year5,000,000; provided that (xy) the consideration received for such asset -------- assets shall be in an -------- amount at least equal to the 123 fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); 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 may sell non-core businesses acquired in connection with Permitted Acquisitions;
(x) Company and its Subsidiaries may sell or dispose of Cash Equivalents and other investments permitted under subsection 7.3;
(xi) Company and its 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 the Company or its Subsidiaries in connection therewith are funded solely with new cash equity contributions to the Company, (b) there shall be no recourse against the Company or any of its Subsidiaries in respect of such letters of intent or purchase agreements other than against any such xxxx xxxxxxx money deposits and (c) neither the Company nor any of its 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 124 extent as in effect immediately prior to such conversion) and Holdings and Company comply with the provisions of subsection 10.22;
(xiii) Company or any Permitted Subsidiary of Company 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), provided that: --------
(a) immediately prior to and after giving effect to any such acquisition, 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 (B) such Person is merged with and into Company or a Permitted Subsidiary of Company (with Company or such Permitted 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) any assets acquired pursuant to such acquisition by a Loan Party shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to 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 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 125 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) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xvii) Company and its Permitted Subsidiaries may make Investments pursuant to subsection 7.3; and
(xviii) Holdings may issue Common Units, the Preferred Units and Qualified Preferred Units to the extent not otherwise prohibited under the provisions of this Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Anthony Crane Holdings Capital Corp)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings No Borrower shall not, and nor shall not any Borrower permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company such Borrower or any of Company's its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessorsub-lessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or fixed assets, whether now owned or 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 with or into Company or any wholly-owned Subsidiary Guarantorof Company, or 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 Company or any wholly-owned Subsidiary Guarantorof Company; provided PROVIDED that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and if any such transaction involves a Subsidiary Guarantor, the surviving corporation shall be the Company or such Subsidiary Guarantor;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such periodmake Consolidated Capital Expenditures;
(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 PROVIDED that -------- the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and make Investments permitted pursuant to subsection 7.3(ii); and
(iv) subject to subsection 7.10, Company and its Subsidiaries may make Asset Sales (a) of the property, plant and equipment of Xxxx France; (b) constituting sale/leaseback transactions of its real property located in Sayama, Japan, and Westmont, Illinois; (c) of the vacated warehouse located in Cedar Rapids, Iowa; (d) of the apartment buildings located in Sayama, Japan; (e) of obsolete surplus or excess equipment and machinery located in Wyomissing, Pennsylvania, and Cedar Rapids, Iowa; and (f) of other assets having a fair market value not in excess of $2,000,000 for any given 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; and
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (xy) the consideration received for such asset therefor shall be in an -------- amount at least equal 85% in cash and the balance of any consideration not received as cash shall be represented by promissory notes which shall be pledged to Agent pursuant to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision)applicable Collateral Documents; and (z) the net cash proceeds of such Asset asset Sales shall be applied as required by to prepay Loans in accordance with subsection 2.4B(iii)(a)) in an amount equal to such net cash proceeds.
Appears in 1 contract
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Borrower shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up up, or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or lease, sub-lease (as lessor or sublessor)lease, transfer transfer, or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property property, or fixed assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property property, or fixed assets of, or stock or other evidence of beneficial ownership Stock of, any Person or any division or line of business of any Person, exceptexcept that:
(ia) any Subsidiary of Company Borrower may be merged with or into Company Borrower or any wholly-owned Subsidiary Guarantorof Borrower, or be liquidated, wound up or dissolved, or all or any part of its business, property property, or assets may be conveyed, sold, leased, transferred transferred, or otherwise disposed of, in one transaction or a series of transactions, to Company Borrower or any wholly-owned Subsidiary Guarantorof Borrower; provided that, in the case of such a merger, Company -------- Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company Borrower may merge with or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company into another Person so long as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default under this Agreement exists or under would result therefrom and so long as Borrower shall be the Senior Subordinated Notes shall 142 then exist continuing or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such periodsurviving corporation;
(iiic) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries Companies may sell or otherwise dispose of (i) assets that are obsolete or no longer used or usable in transactions the Companies' business, (ii) the Stock or assets of any Subsidiary that do is not a Significant Subsidiary, (iii) Stock of any Person that does not constitute Asset Salesa Subsidiary, and (iv) other assets so long as, in the case of sales of assets under this clause (iv), the aggregate consideration during any period of four (4) consecutive Fiscal Quarters (A) for any single sale or disposition (or series of related sales or dispositions) does not exceed five percent (5%) of Gross EBITDA for such four (4) Fiscal Quarters, and (B) for all such sales or dispositions does not exceed ten percent (10%) of Gross EBITDA for such four (4) Fiscal Quarters; provided that -------- the consideration received for all such assets shall be in an amount at least equal to the fair market value thereof;
(d) the Companies may sell or otherwise dispose of their Real Estate Investments;
(e) the Companies may make Investments permitted by Section 6.2; and
(vf) Company and its Subsidiaries the Companies may make Asset Sales of assets having a fair market value not in excess of $3,000,000 in any Fiscal Year; provided that (x) the consideration received for such asset shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision); and (z) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a)Permitted Acquisitions.
Appears in 1 contract
Samples: Credit Agreement (Trammell Crow Co)
RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS. Holdings Company shall not, and shall not permit any of its Company's Subsidiaries to, alter the corporate, capital or legal structure of Holdings or Company or any of Company's Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction 141 or a series of transactions, all or any part of its business, property or assets, whether now owned or 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) (a) any Domestic Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor, 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 Company or any wholly-owned Subsidiary Guarantor; provided PROVIDED that, in the case of such a merger, Company -------- or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving corporationcorporation and (b) any Foreign Subsidiary may be merged with or into another Foreign Subsidiary or, so long as the surviving corporation of such merger is Company or a Domestic Subsidiary, with or into the 107 Company or any Domestic 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 Company, a Subsidiary Guarantor or another Foreign Subsidiary, PROVIDED, that notwithstanding the above, a Subsidiary may only liquidate or dissolve into, or merge with and into, another Subsidiary if, after giving effect to such combination or merger, Company continues to own (directly or indirectly), and Administrative Agent continues to have pledged to it pursuant to the DAH Pledge Agreement or Subsidiary Pledge Agreement, a percentage of the issued and outstanding equity Securities (on a fully diluted basis) of the Subsidiary surviving such combinations or merger that is equal to or in excess of the percentage of the issued and outstanding shares of equity Securities (on a fully diluted basis) of the Subsidiary that does not survive such combinations or merger that was (immediately prior to the combination or merger) owned by the Company or pledged to Administrative Agent;
(ii) Company and its wholly-owned 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, or any division or line of business of any Person, in the Business or a business incidental or related thereto (collectively, "PERMITTED ACQUISITION"); provided that (a) -------- such Person becomes a wholly-owned Subsidiary of Company, or such business, property or other assets are acquired by Company or a wholly-owned Subsidiary of Company, and any such wholly-owned Subsidiary which is a Foreign Subsidiary shall be a direct Subsidiary of Company; (b) the aggregate consideration paid by Company or any of its Subsidiaries does not exceed (1) for any single Permitted Acquisition, an amount equal to $25,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the ---- aggregate amount received by Company as cash capital contributions from Holdings after the Closing Date to finance such transaction and/or equity issued as consideration in such transaction, and (2) for all such Permitted Acquisitions during the term of this Agreement, $75,000,000 consisting of cash consideration, Indebtedness and other liabilities incurred or assumed plus an equal or lesser amount equal to the aggregate amount received by ---- Company as cash capital contributions from Holdings after the Closing Date and/or equity issued as consideration in such transactions; (c) 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 Acquisitions; and (d) prior to the consummation of such Permitted Acquisition, Company shall deliver to Administrative Agent an Officer's Certificate (1) certifying that no Potential Event of Default or Event of Default make Consolidated Capital Expenditures permitted under this Agreement or under the Senior Subordinated Notes shall 142 then exist or shall occur as a result of such Permitted Acquisition, (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, that Company is in pro --- forma compliance with the financial covenants referred to in subsection 7.6 ----- for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition and that, giving effect to such Permitted Acquisition, Company is in compliance with the clause (b) of this subsection 7.7(ii) on a cumulative basis for all Permitted Acquisitions, and (3) delivering a copy, prepared in conformity with GAAP, 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) audited or reviewed financial statements of the Person or business so acquired for the fiscal year ended within such period7.8;
(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 consummate any transfer, conveyance or other disposal that constitutes (a) an Investment permitted under subsection 7.3, (b) a Lien permitted under subsection 7.2, (c) a Restricted Junior Payment permitted under subsection 7.5 or (d) a sale and leaseback transaction permitted by subsection 7.10;
(v) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(vi) Finance Co., Acquisition Co. and DAH may consummate the Merger and the Second Merger;
(vii) (x) Company and its Subsidiaries may make Permitted Acquisitions; PROVIDED that such Permitted Acquisitions result in the Company or the relevant Subsidiary acquiring a majority controlling interest in the Person (or its assets and businesses) acquired, or increasing any such controlling interest maintained by it in such Person or result in the Person acquired becoming an Acquired Controlled Person with respect to Company and its Subsidiaries; and (y) no later than five Business Days prior to the consummation thereof, Company delivers to Agents a Permitted Acquisition Compliance Certificate demonstrating compliance with the requirements of the definition of "Permitted Acquisition" and copies of all acquisition agreements executed and delivered in connection therewith to the extent available and requested by Administrative Agent; and PROVIDED FURTHER that reasonably promptly following the consummation of such Permitted Acquisition, Company shall have complied with the provisions of subsections 6.8 and 6.9 with respect thereto to the extent applicable;
(viii) Prior to the consummation of the Merger, Company or any of its Subsidiaries may convey, sell, transfer or otherwise dispose 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; 108
(ix) Company and its Subsidiaries may sell or otherwise dispose of assets as a result of any taking of assets described in clause (ii) of the definition of "Net Insurance/Condemnation Proceeds", so long as the Net Insurance/Condemnation Proceeds resulting therefrom are applied or reinvested as required by subsection 2.4B(iii)(b);
(x) Company and its Subsidiaries may sell or discount overdue accounts receivable in the ordinary course of business, but only in connection with the compromise or collection thereof;
(xi) Company and its Subsidiaries may make Asset Sales to Non-Wholly-Owned Subsidiaries that are not Subsidiary Guarantors of assets having a fair market value of not in excess of $10,000,000 in the aggregate for all such Asset Sales made after the Closing Date; provided that -------- (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, and (y) any Investment in such Non-Wholly-Owned Subsidiaries resulting from such Asset Sale shall be permitted by subsection 7.3(xiii) or as a Permitted Acquisition pursuant to subsection 7.3 (viii); and
(vxii) Company and its Subsidiaries may make Asset Sales not permitted by the foregoing clauses of assets having a fair market value of not in excess of $3,000,000 5,000,000 in any Fiscal YearYear or of $10,000,000 in the aggregate for all such Asset Sales made after the Closing Date; provided PROVIDED that (x) the consideration received for such asset assets shall be in an -------- amount at least equal to the fair market value thereof; (y) at least 75% of the consideration received therefor is in the form of Cash (provided that -------- any liabilities which are assumed by the transferee of such Assets pursuant to a customary novation agreement that releases Company or such Subsidiary from further liability, and any promissory notes received that are converted into Cash, shall be deemed to be cash for purposes of this provision)cash; and (z) the proceeds of such Asset Sales shall be Sale are applied or reinvested as required by subsection 2.4B(iii)(a).
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