Restriction on Fundamental Changes; Asset Sales. Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise), in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except: (i) any Borrower may be merged with or into a Borrower, 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 a Borrower; provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; (a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction; (iii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided, that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and (iv) Company and its Subsidiaries may make Asset Sales, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Covanta Energy Corp), Credit Agreement (Danielson Holding Corp)
Restriction on Fundamental Changes; Asset Sales. Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise), in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower may be merged with or into a Borrower, 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 a Borrower; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower; provided further, providedthat, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iv) Company and its Subsidiaries may make Asset Sales, provided, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any non-cash consideration received shall be reasonably satisfactory to Administrative Agent; (e) the principal documentation for each such Asset Sale shall have been delivered in advance to Administrative Agent; (f) upon consummation of each such Asset Sale, neither Company nor any of its Subsidiaries shall have any debts or obligations, contingent or otherwise, relating to the sold entities or assets (other than customary indemnification obligations and purchase price adjustment obligations incurred in connection with such Asset Sale); (g) any Indebtedness in relation to the such assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (eh) any Asset Sale or series of related Asset Sales (1) in which the consideration to be received (other than the assumption of liabilities related to such assets) exceeds $15,000,0000 shall require the prior written consent of the Requisite Lenders, (2) of the Quezon Project or involving any assets or property comprising the Quezon Project shall require the prior written consent of Requisite Lenders and (3) in which the consideration to be received (other than the assumption of liabilities related to such assets) exceeds $5,000,000 shall require the delivery no later than 30 days prior to the consummation of such Asset Sale or Asset Sales of an independent appraisal of the fair market value of such assets subject thereto which appraisal shall be performed by an appraiser satisfactory to Administrative Agent and shall be in form and substance satisfactory in all respects to Administrative Agent and (i) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; ;
(v) Any Subsidiary of Company may, if its Board of Directors determines that doing so is in the best interests of such Subsidiary, change its legal form of organization
(1) if such Subsidiary is a Borrower, such Subsidiary shall have executed such documents as Administrative Agent reasonably deems necessary to ensure that such Subsidiary continues to be bound as a Borrower under the Loan Documents after such change and (f2) in if all or any portion of the event that equity interests of such Subsidiary are subject to Liens created under the Net Asset Sale Proceeds from any Asset SaleCollateral Documents prior to such change, when added the same percentage of the equity interests of such Subsidiary shall continue to be subject to Liens under the aggregate Net Asset Sale Proceeds from all other Asset Sales Collateral Documents after the Closing Datesuch change, would exceed $10,000,000with such Liens being of equal or higher priority than before such change and, if perfected prior to such change, perfected, and (b) Company and its Subsidiaries shall not be permitted have complied with the provisions of the Collateral Documents applicable to consummate such Asset Sale without change of legal form; and
(vi) Covanta Energy India (Balaji) Ltd. may sell approximately 372,860 shares held by it on the prior written consent Closing Date in the Madurai Project entity, Madurai Power Corp. Pvt. Ltd. (the "MADURAI PROJECT ENTITY"), to the Indian local partner with respect to the Madurai Project for approximately $575,000 (it being understood that such amount is the approximate Dollar equivalent of Requisite Lendersan estimate as of November 15, 2003 of the proceeds from such sale, and thus may change based on fluctuations in currency exchange rates), to the extent such local partner requires such sale so that such local partner will hold, after giving effect to such sale, up to 25.2% of the issued and outstanding Capital Stock of the Madurai Project Entity.
Appears in 2 contracts
Samples: Credit Agreement (Danielson Holding Corp), Credit Agreement (Covanta Energy Corp)
Restriction on Fundamental Changes; Asset Sales. Borrowers shall notNo Principal Company will, and shall not no Principal Company will permit their respective any of its Subsidiaries to, materially alter the organizational, capital or legal form structure of organization of such Principal Company or any of its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolutiondissolution (other than the dissolution of the Immaterial Subsidiaries)), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)Dispose of, in one transaction or a series of transactions, all or any part of its business, property business or assets Property (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(ia) any Borrower Subsidiary of the Parent may be merged with or into either Principal Company or any Wholly-Owned Subsidiary that is a BorrowerGrantor, or be liquidated, wound up or dissolved, or all or any part of its business, property business or assets Property may be conveyed, sold, leased, transferred or otherwise disposed Disposed of, in one transaction or a series of transactions, to such Principal Company or any Wholly-Owned Subsidiary that is a BorrowerGrantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, such Principal Company or Contingent Obligation than such obligee Wholly-Owned Subsidiary that is a Grantor, respectively, shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(ab) any Non-Grantor Subsidiary of such Principal Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a BorrowerNon-Grantor Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property business or assets Property may be conveyed, sold, leased, transferred or to otherwise disposed Disposed of, in one transaction or a series of transactions, to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionNon-Grantor Subsidiary;
(iiic) such Principal Company and its Subsidiaries may sell or otherwise dispose 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;
(ivd) such Principal Company and its Subsidiaries may Dispose of (i) obsolete, worn out or surplus property in the ordinary course of business or (ii) subject to compliance with Section 8.3, any Property that, as a result of the Acquisition, becomes surplus or duplicative of or redundant with other Property of the Parent or any of its Subsidiaries and is no longer necessary for the conduct of the business of the Parent and its Subsidiaries;
(e) such Principal Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $2,250,000 minus the aggregate fair market value of all assets previously Disposed of pursuant to this Section 10.6(e) in the last three fiscal years; provided that (ai) the consideration received for such assets shall be in an amount at least equal to the fair market value (as determined by the Parent’s Governing Body acting in good faith) thereof; (bii) not less than 90% of the sole consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (eiii) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to in accordance with the extent required under subsection 2.4A; and provisions of Section 8.3 hereof;
(f) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Saleordinary course of business, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, such Principal Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(g) such Principal Company or a Subsidiary may sell or Dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by Applicable Law or in the formation of Joint Ventures to the extent (i) such Joint Ventures constitute Investments permitted pursuant to Section 10.3 hereof or (ii) the sale or Disposition of shares of Capital Stock in connection with the formation of such Joint Ventures constitute Asset Sales subject to the provisions of Section 10.6(e) hereof;
(h) any Person may be merged with or into such Principal Company or any Subsidiary if the acquisition of the Capital Stock of such Person by such Principal Company or such Subsidiary would have been permitted pursuant to Sections 10.1, 10.2 and 10.3; provided that (i) in the case of such Principal Company, such Principal Company shall be the continuing or surviving Person, (ii) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Wholly-Owned Subsidiary that is a Grantor and complies with the provisions of Sections 9.7 and 9.8 and (iii) no Default or Event of Default shall have occurred or be permitted continuing after giving effect thereto; and
(i) such Principal Company and its Subsidiaries may make Asset Sales constituting Permitted Asset Sales; provided that (i) the consideration received for such assets shall be in an amount at least equal to consummate the fair market value (as determined by the Parent’s Governing Body acting in good faith) thereof; (ii) the sole consideration received shall be cash; and (iii) the proceeds of such Asset Sale without Sales shall be applied in accordance with the prior written consent provisions of Requisite LendersSection 8.3 hereof.
Appears in 2 contracts
Samples: Credit Agreement (Dialogic Inc.), Credit Agreement (Tennenbaum Capital Partners LLC)
Restriction on Fundamental Changes; Asset Sales. Borrowers shall notNo Principal Company will, and shall not no Principal Company will permit their respective any of its Subsidiaries to, materially alter the organizational, capital or legal form structure of organization of such Principal Company or any of 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 (including by discount or compromise)Dispose of, in one transaction or a series of transactions, all or any part of its business, property business or assets Property (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(ia) any Borrower Subsidiary of the Parent may be merged with or into either Principal Company or any Wholly-Owned Subsidiary that is a BorrowerGrantor, or be liquidated, wound up or dissolved, or all or any part of its business, property business or assets Property may be conveyed, sold, leased, transferred or otherwise disposed Disposed of, in one transaction or a series of transactions, to such Principal Company or any Wholly-Owned Subsidiary that is a BorrowerGrantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, such Principal Company or Contingent Obligation than such obligee Wholly-Owned Subsidiary that is a Grantor, respectively, shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(ab) any Non-Grantor Subsidiary of such Principal Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a BorrowerNon-Grantor Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property business or assets Property may be conveyed, sold, leased, transferred or to otherwise disposed Disposed of, in one transaction or a series of transactions, to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionNon-Grantor Subsidiary;
(iiic) such Principal Company and its Subsidiaries may sell or otherwise dispose 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;
(ivd) such Principal Company and its Subsidiaries may Dispose of (i) obsolete, worn out or surplus property in the ordinary course of business or (ii) subject to compliance with Section 8.3, any Property that becomes surplus or duplicative of or redundant with other Property of the Parent or any of its Subsidiaries and is no longer necessary for the conduct of the business of the Parent and its Subsidiaries;
(e) such Principal Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $1,000,000 in the aggregate in any Fiscal Year; provided that (ai) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (bii) not less than 90% of the sole consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (eiii) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to in accordance with the extent required under subsection 2.4A; and provisions of Section 8.3 hereof;
(f) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Saleordinary course of business, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, such Principal Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(g) such Principal Company or a Subsidiary may sell or Dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by Applicable Law or in the formation of Joint Ventures to the extent (i) such Joint Ventures constitute Investments permitted pursuant to Section 10.3 hereof or (ii) the sale or Disposition of shares of Capital Stock in connection with the formation of such Joint Ventures constitute Asset Sales subject to the provisions of Section 10.6(e) hereof;
(h) any Person may be merged with or into such Principal Company or any Subsidiary if the acquisition of the Capital Stock of such Person by such Principal Company or such Subsidiary would have been permitted pursuant to Sections 10.1, 10.2 and 10.3; provided that (i) in the case of such Principal Company, such Principal Company shall be the continuing or surviving Person, (ii) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Wholly-Owned Subsidiary that is a Grantor and complies with the provisions of Sections 9.7 and 9.8 and (iii) no Default or Event of Default shall have occurred or be permitted continuing after giving effect thereto; and
(i) such Principal Company and its Subsidiaries may make Asset Sales constituting Permitted Asset Sales; provided that (i) the consideration received for such assets shall be in an amount at least equal to consummate the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) the proceeds of such Asset Sale without Sales shall be applied in accordance with the prior written consent provisions of Requisite LendersSection 8.3 hereof.
Appears in 2 contracts
Samples: Credit Agreement (Dialogic Inc.), Credit Agreement (Tennenbaum Capital Partners LLC)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (a) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a Borrower; providedCompany or any wholly-owned Subsidiary Guarantor (or, that no such transaction shall result in the obligee or beneficiary case of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 transactionsForeign Subsidiary, to another Subsidiary that is not a BorrowerForeign Subsidiary); provided that, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionSubsidiary;
(iiiii) Company and its Subsidiaries may sell sell, lease 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;
(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 make Asset SalesSales of assets having a fair market value not in excess of $15,000,000 (other than any permitted Asset Sale of Florists’ Transworld Delivery, providedInc.’s headquarters located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxx the value of which must not exceed $20,000,000); provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 9075% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; 2.4B(iii)(a) and subsection 2.4D;
(fv) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and subsection 6.9 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(viii) Company or a Subsidiary may, in the ordinary course of business, liquidate Cash Equivalents;
(ix) Company and its Subsidiaries may sell or grant licenses to use Intellectual Property to the extent such licenses do not prohibit the licensor from using such Intellectual Property;
(x) Company and its Subsidiaries may sell and lease back property in a transaction permitted by subsection 7.10;
(xi) Company and its Subsidiaries may settle accounts receivable owing to consummate such Asset Sale without Company or any of its Subsidiaries in connection with the prior written consent making of Requisite Lendersloans permitted by subsection 7.3(xv);
(xii) the Acquisition may occur in accordance with the terms and conditions of the Acquisition Agreement.
Appears in 2 contracts
Samples: Credit Agreement (FTD Group, Inc.), Credit Agreement (FTD Group, Inc.)
Restriction on Fundamental Changes; Asset Sales. Borrowers Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Borrower or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case 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 (other than purchases or other acquisitions of Inventory, materials and equipment in the ordinary course of Borrower's, or any of its Subsidiary's, business) except:
(i) any Subsidiary of Borrower may be merged with or into a BorrowerBorrower 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 a BorrowerBorrower or any wholly-owned Subsidiary Guarantor; providedPROVIDED that, that no such transaction shall result (i) in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Borrower or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior surviving Person and (ii) in the case of such a liquidation, winding up or dissolution, all of the assets of such wholly-owned Subsidiary Guarantor are transferred to such transactionBorrower or a Subsidiary Guarantor that is wholly owned, directly or indirectly, by Borrower or as otherwise expressly permitted under this Agreement;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; and111
(iv) Company Borrower and its Subsidiaries may make Asset Sales, provided, Sales to Persons who are not Affiliates of Borrower and its Subsidiaries of assets having a fair market value not in excess of $1,000,000 in 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; (b) not less than 90% of the sole consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii) or subsection 2.4D;
(v) In order to resolve disputes that occur in the extent ordinary course of business, Borrower and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Borrower or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required under by applicable law;
(vii) Any Person may be merged with or into Borrower or any of its Subsidiaries if the acquisition of the Capital Stock of such Person by Borrower or such Subsidiary would have been permitted pursuant to subsection 2.4A7.3(vi) and 7.7; and PROVIDED that (fa) in the event case of Borrower, Borrower shall be the continuing or surviving Person, (b) if a Subsidiary of Borrower is not the surviving or continuing Person, the surviving Person becomes a Subsidiary of Borrower and complies with the provisions of subsection 6.8 and 6.9 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(viii) the sale, transfer or other disposition of the Concho Golf and Country Club located in the State of Arizona in an arm's length transaction to a Person that is not an Affiliate of Borrower or any of its Subsidiaries resulting in Net Asset Sale Proceeds in an amount not less than $500,000;
(ix) the sale, transfer or other disposition of the Mortgaged Property located at 749 Beal Parkway, Fort Walton Beach, Florida in one parcel or ix xxxxxxxx xxxxxxx, if Xxxxxxer determines that such division is necessary (and Administrative Agent shall release the lien of the Florida Mortgage from the 749 Beal Parkway property in connection with such sale, transfex xx xxxxx xxxxxsition) so long as the Net Asset Sale Proceeds resulting therefrom are in an amount not less than $700,000 for the rear undeveloped portion of 749 Beal Parkway and not less than $1,800,000 for the front porxxxx xx 000 Beal Parkway and are used to (i) purchase the real property xxxxxxx xx 651 Anchors Street, Fort Walton Beach, Florida and (ii) construxx x xxx xxxxxxxx xx x xxxxxxx xx the Mortgaged Property encumbered by the Florida Mortgage, provided that such construction shall commence within 180 days after Borrower's receipt of the Net Asset Sale Proceeds from such sale, transfer or disposition; and
(x) the sale, transfer or other disposition of CEC-Chile in an asset sale or a stock sale to a person that is not an Affiliate of Borrower or any Asset Sale, when added to the aggregate of its Subsidiaries in a transaction resulting in Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed of not less than $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders.30,000. 112
Appears in 2 contracts
Samples: Credit Agreement (Integrated Defense Technologies Inc), Credit Agreement (Integrated Defense Technologies Inc)
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or (a) any of its Subsidiaries, or and their Material Subsidiaries to enter into any transaction of merger merger, amalgamation or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or (b) any of its and their Restricted Subsidiaries to convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (x) any Borrower Restricted Subsidiary of Company (other than a Borrower) may be merged or amalgamated with or into a Company, any Borrower, any Subsidiary Guarantor or any Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor; provided that, in the case of such a merger or amalgamation, Company, such Borrower, such Subsidiary Guarantor or such Offshore Guarantor shall be the continuing or surviving Person and (y) a Borrower (other than Xxxxx-Xxxxxxxx) may merge with and into any other Borrower incorporated or otherwise organized in the same jurisdiction as the Borrower with or into which such Borrower is merging if (a) the aggregate amount of outstanding Loans of the surviving Borrower will not exceed such Borrower’s Multicurrency Revolving Sublimit and (b) the Administrative Agent determines that such merger would not be materially adverse to the interests of the Lenders;
(ii) Company and its Restricted Subsidiaries may sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out, uneconomical, unmerchantable, unsaleable or surplus property in the ordinary course of business;
(iv) Company and its Restricted Subsidiaries may make Asset Sales of assets having an aggregate book value (at the time of disposition) not in excess of 15% of Consolidated Tangible Assets in 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 (b) the Net Proceeds arising from such Asset Sales shall be applied as required under Section 4.4(c); provided, however, to the extent that no such transaction shall result the Net Proceeds of any Asset Sale that are not required to be used to prepay the Loans pursuant to Section 4.4(c) are reinvested in the obligee manner and in the time periods prescribed in Section 4.4(c), and if Company or beneficiary such Restricted Subsidiary has complied with the provisions of Section 7.9 with respect to any assets purchased with such reinvested proceeds, such Asset Sale shall be disregarded for purposes of calculations pursuant to this Section 8.7(iv) (and shall otherwise be deemed to be permitted under this Section 8.7(iv)) to the extent of the reinvested proceeds, from and after the time of compliance with Section 7.9 with respect to the acquisition of such other property;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Restricted Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Restricted Subsidiaries may sell accounts receivable in connection with Receivables Sale Indebtedness permitted under Section 8.1(xiv);
(vi) Company and its Restricted Subsidiaries may make Acquisitions and Investments permitted by Section 8.3;
(vii) Company or a Restricted Subsidiary may sell or dispose of shares of Capital Stock of any Indebtedness or Contingent Obligation of its Restricted Subsidiaries in order to qualify members of the Governing Body of the Restricted Subsidiary if required by applicable law;
(viii) any Person (other than Holdings or a Borrower) may be merged or amalgamated with or into Company or any Restricted Subsidiary if the Obligations) having greater recourse to assets or Persons for acquisition of the payment or collection Capital Stock of such Indebtedness Person by Company or Contingent Obligation than such obligee Restricted Subsidiary would not be prohibited pursuant to Section 8.3; provided that (a) in the case of Company or beneficiary had immediately prior to a Borrower, Company or such transactionBorrower shall be the continuing or surviving Person, (b) if a Restricted Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Restricted Subsidiary and complies with the provisions of Sections 7.9 and 7.10 and (c) no Unmatured Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(aix) any Restricted Subsidiary of Company that is not (other than a Borrower Borrower) may be merged or amalgamated with or into any other Restricted Subsidiary of Company that is not (other than a Borrower, ) or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, transactions to another any other Restricted Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation Company (other than a Borrower), so long as, at the Obligations) having greater recourse to assets or Persons for the payment or collection time of such Indebtedness event, neither Restricted Subsidiary is a Subsidiary Guarantor or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionan Offshore Guarantor;
(iiix) Company and its Restricted Subsidiaries may sell lease, including subleases and assignments of leases and subleases, real or personal property in the ordinary course of business (except in connection with a sale and lease back transaction);
(xi) Company and its Restricted Subsidiaries may enter into consignment arrangements (as consignor or as consignee) or similar arrangements for the sale of goods in the ordinary course of business;
(xii) Company and its Restricted Subsidiaries may sell, transfer or otherwise dispose of assets any award, judgment or other rights related to the O-I Venezuela Proceeds;
(xiii) Company and its Restricted Subsidiaries may (y) enter into licenses or sublicenses of Intellectual Property and general intangibles in transactions that the ordinary course of business and which do not constitute Asset Sales; providedmaterially interfere with the business of such Person and (z) abandon or dispose of intellectual property or other proprietary rights of such Person that, that in the consideration received for reasonable business judgment of such assets shall be Person, is no longer practical to maintain or useful in an amount at least equal the conduct of its business;
(xiv) Company and its Restricted Subsidiaries may enter into sale and leaseback transactions permitted under Section 8.10;
(xv) Company and its Restricted Subsidiaries may make Restricted Payments permitted pursuant to Section 8.5;
(xvi) Company and its Restricted Subsidiaries may make dispositions of owned or leased vehicles in the fair market value thereofordinary course of business;
(xvii) Company and its Restricted Subsidiaries may make dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of any their respective property or assets; and
(ivxviii) Company and its Restricted Subsidiaries may make Asset Salessurrender or waive contractual rights to settle, release or surrender any contract or litigation claims in the ordinary course of business; provided, that (a) that, notwithstanding any of the consideration received for such assets shall be foregoing clauses or anything else in an amount at least equal this Agreement to the fair market value thereof; contrary, (bi) Xxxxx-Xxxxxxxx may not less than 90% of the consideration received (issue any new Capital Stock to any Person other than to Packaging, and (ii) Packaging may not convey, sell, transfer or otherwise dispose of any consideration consisting of Capital Stock in Xxxxx-Xxxxxxxx, other than the assumption of liabilities related security interest therein pledged to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation Collateral Agent pursuant to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersPledge Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Owens-Illinois Group Inc), Credit Agreement (Owens-Illinois Group Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or Subsidiaries to 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (a) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a Borrower; providedCompany or any wholly-owned Subsidiary Guarantor (or, that no such transaction shall result in the obligee or beneficiary case of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 transactionsForeign Subsidiary, to another Subsidiary that is not a BorrowerForeign Subsidiary); provided that, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionSubsidiary;
(iiiii) Company and its Subsidiaries (other than Dormant Subsidiaries) may sell sell, lease 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;
(iii) Company and its Subsidiaries (other than Dormant Subsidiaries) may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries (other than Dormant Subsidiaries) may make Asset SalesSales of assets having a fair market value not in excess of $10,000,000 and may sell Florists’ Transworld Delivery, providedInc.’s headquarters located at 3000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxx; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 9075% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash or Cash Equivalents; (c) not more than 10% no Event of the cash consideration received by Company Default shall have occurred or be continuing after giving effect thereto; and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; 2.4B(iv)(a) or subsection 2.4D;
(v) Company and its Subsidiaries may sell real property located in Sleaford, England owned by any Subsidiary of Company;
(fvi) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries (other than Dormant Subsidiaries) may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vii) Company or a Subsidiary (other than a Dormant Subsidiary) may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(viii) any Person may be merged with or into Company or any Subsidiary (other than any Dormant Subsidiary) if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsections 6.8 and 6.9 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(ix) Company or a Subsidiary (other than a Dormant Subsidiary) may, in the ordinary course of business, dispose of Hedge Agreements;
(x) Company and its Subsidiaries (other than Dormant Subsidiaries) may sell or grant licenses to use Intellectual Property to the extent such licenses do not prohibit the licensor from using such Intellectual Property;
(xi) Company and its Subsidiaries may consummate the Acquisition and Merger in accordance with the terms and conditions of the Merger Agreement;
(xii) Company and its Subsidiaries may settle accounts receivable owing to Company or any of its Subsidiaries in connection with the making of loans permitted by subsection 7.3(xii);
(xiii) Company and its Subsidiaries may transfer property as a result of casualty or condemnation events;
(xiv) Company and its Subsidiaries may enter into leases and subleases of real and personal property in the ordinary course of business;
(xv) Company and its Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to consummate such Asset Sale without qualify members of the prior written consent Governing Body of Requisite Lendersthe Subsidiary if required by applicable law; and
(xvi) Company and its Subsidiaries may dispose of Cash or Cash Equivalents in transactions not prohibited by this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (United Online Inc), Credit Agreement (United Online Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Holdings and Company shall not, and shall not permit any of their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease sublease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(ii) Company and its Subsidiaries may sell or otherwise dispose of inventory in the ordinary course of business;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus assets or of assets no longer used or useful in the conduct of the business of Company and its Subsidiaries, in each case, in the ordinary course of business;
(iv) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of the greater of (x) $25,000,000 and (y) 5% of Total Assets; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) the consideration received shall be 75% cash; provided that for purposes of this subclause (b) any Designated Noncash Consideration in an amount not to exceed the greater of (x) $5,000,000 and (y) 1% of Total Assets in the aggregate for all Asset Sales following the Closing Date (provided that for purposes of this proviso any Designated Noncash Consideration which has subsequently been sold for, or otherwise converted to cash, shall not be counted against such limitation to the extent of the cash received) shall be deemed to be cash; and (c) after giving effect to such Asset Sale Company shall be in Pro Forma Compliance;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) the Merger and the Tender Offer may occur in accordance with the terms and conditions of the Merger Agreement and the Offer to Purchase Agreement;
(viii) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) in the case of a Subsidiary, if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(ix) any Foreign Subsidiary of Company that is not a Borrower may be merged with or into any other Foreign Subsidiary of Company that is not a BorrowerCompany, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionCompany;
(iiix) Company or any Subsidiary may lease, sublease, license or sublicense property (and surrender and terminate leases and other occupancy agreements) in the ordinary course of business and which do not materially interfere with the business of Company and its Subsidiaries or adversely affect the Collateral;
(xi) Company or any Subsidiary may abandon Intellectual Property which, in the reasonable good faith determination of Company or any Subsidiary, is uneconomical, negligible, obsolete or otherwise not material in the conduct of the business of Company or such Subsidiary;
(xii) Company or any Subsidiary may dispose of any asset subject to any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding; provided that the Net Insurance/Condemnation Proceeds received by Company or such Subsidiary shall be applied as required by subsection 2.4(B)(iii)(b);
(xiii) Company or any Subsidiary may dispose of Investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties in, joint venture agreements and similar binding arrangements; and
(xiv) 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
(iv) Company and its Subsidiaries may make Asset Sales, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders.
Appears in 2 contracts
Samples: First Lien Credit Agreement (SafeNet Holding Corp), First Lien Credit Agreement (SafeNet Holding Corp)
Restriction on Fundamental Changes; Asset Sales. Borrowers shall notNo Loan Party will, and shall not nor will it permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(ia) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; provided, provided that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(ivc) Company and its Subsidiaries may dispose of obsolete, worn out, uneconomic or surplus property no longer used or useful in the ordinary course of business of Company;
(d) Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having an aggregate fair market value not in excess of $30,000,000 from and after the Second Restatement Date to the Maturity Date; provided that (aA) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (bB) not less than 90at least 85% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; (cC) not more than 10% no Potential Event of the cash consideration received by Company Default or Event of Default shall have occurred or be continuing immediately after giving effect thereto; and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (eD) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to repay the extent required under subsection 2.4A; and (fLoans in accordance with Section 2.4(b)(iii)(B) in the event or Section 2.4(d), provided that the all such Net Asset Sale Proceeds from any Asset Sale, when added to in a Fiscal Year not exceeding $10,000,000 in the aggregate Net Asset Sale Proceeds from all other Asset Sales after may be applied or reinvested in accordance with Section 2.4(b)(ii)(A);
(e) in order to resolve disputes that occur in the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(f) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(g) Company may perform its obligations under the Conveyance of Undivided Mineral Interest;
(h) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to Section 6.3; provided that (i) in the case of Company, Company shall be the continuing or surviving Person, (ii) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of Section 5.9 and (iii) no Potential Event of Default or Event of Default shall have occurred or be continuing immediately after giving effect thereto;
(i) any Capital Stock of any Subsidiary of Company may be sold, transferred or otherwise disposed of to Company or any other wholly-owned Subsidiary of Company (provided that, in the case of any such transfer by a Loan Party, the transferee must also be a Loan Party or constitute an Investment otherwise permitted hereunder);
(j) the cross licensing or licensing of intellectual property, in the ordinary course of business;
(k) the leasing, occupancy or sub-leasing of Real Property Assets in the ordinary course of business that would not materially interfere with the required use of such Real Property Asset by any Loan Party;
(l) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to consummate the respective Government Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such Asset Sale without the prior written consent property as part of Requisite Lendersan insurance settlement;
(m) Liens expressly permitted by Section 6.2;
(n) Restricted Junior Payments expressly permitted by Section 6.5; and
(o) Investments permitted by Section 6.3.
Appears in 2 contracts
Samples: Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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;
(iviii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(v) Company and its Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vi) Company and its Subsidiaries may (a) make dispositions permitted pursuant to subsection 7.9, (b) sell or otherwise transfer the Metarie Offices and (c) make other Asset SalesSales of assets having a fair market value not to exceed $15,000,000 in the aggregate, provided, in each case provided that (a1) the consideration received for such assets shall be in the form of Cash or Cash Equivalents in an amount at least equal to the fair market value thereof; , (b2) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms proceeds of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such dispositions or other Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; 2.4A(iii)(a), and (f3) in the event that the Net Asset Sale Proceeds from any after giving effect to each such Asset Sale, when added to on a reasonable and prudent pro forma basis (in accordance with the aggregate Net Asset Sale Proceeds from all other Asset Sales after standards set forth in Article 11 of Regulation S-X under the Closing DateSecurities Act) as determined by the chief executive officer or chief financial officer of Company, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate as if such Asset Sale without had occurred on the prior written consent first day of Requisite Lendersthe most recent twelve-month period for which Company’s results of operations are available, Company would be in compliance with the covenants set forth in subsection 7.6, and Company has delivered to Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in form and substance satisfactory to Administrative Agent required to confirm such statement, provided that no such Officer’s Certificate or related information and calculations shall be required to be delivered to Administrative Agent in the case of any Asset Sale of a restaurant made in connection with a relocation of such restaurant within the same metropolitan area if the new relocated restaurant is open at the time of such Asset Sale; and
(vii) any Person may be merged with or into any Subsidiary if the acquisition of the Capital Stock of such Person by such Subsidiary would have been permitted pursuant to subsection 7.3; provided that if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (b) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto.
Appears in 2 contracts
Samples: Credit Agreement (Ruths Hospitality Group, Inc.), Credit Agreement (Ruths Chris Steak House, Inc.)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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), license, transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryassets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary of Company that is not a Borrower Subsidiary Guarantor may be merged with or into any other Subsidiary of the Company that is not a BorrowerSubsidiary 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 another any Subsidiary of the Company that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionGuarantor;
(iii) an Asset Sale identified on Schedule 7.7;
(iv) assignments and licenses of Intellectual Property of Company or any Subsidiary between or among Company and its Subsidiaries, and licenses (a) to Joint Ventures or (b) in the ordinary course of business;
(v) leases of owned real property and subleases of leased real property, in each case, not used in the operations of Company and its Subsidiaries;
(vi) 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 (other than assets described in clause (iii)(c) of the definition of Asset Sale) shall be in an amount at least equal to the fair market value thereof; andthereof (as determined in good faith by the Company);
(ivvii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(viii) Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having a net book value on the Company’s books and records not in excess of $20,000,000 in 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 thereofthereof (as determined in good faith by the Company); (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; and (c) not more than 10% no Potential Event of the cash consideration received by Company and its Subsidiaries in any such Asset Sale Default or Event of Default shall have occurred or be received continuing after the date of consummation of such Asset Sale; giving effect thereto;
(d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (fix) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries shall not be may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(x) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(xi) Any transaction permitted pursuant to consummate subsection 7.3 or 7.10;
(xii) Company and its Subsidiaries may sell or otherwise dispose of Cash Equivalents for fair value; and
(xiii) Company and its Subsidiaries may sell or otherwise dispose of specific items of equipment so long as the purpose of such Asset Sale without sale or disposition is to acquire replacement items of like-kind equipment or other equipment used or useful in the prior written consent conduct of Requisite Lendersthe business of Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Hexcel Corp /De/), Credit Agreement (Hexcel Corp /De/)
Restriction on Fundamental Changes; Asset Sales. Borrowers Holdings and Company shall not, and shall not permit any of their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease sublease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(ii) Company and its Subsidiaries may sell or otherwise dispose of inventory in the ordinary course of business;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus assets or of assets no longer used or useful in the conduct of the business of Company and its Subsidiaries, in each case, in the ordinary course of business;
(iv) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of the greater of (x) $31,000,000 and (y) 6% of Total Assets; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (b) the consideration received shall be 75% cash; provided that for purposes of this subclause (b) any Designated Noncash Consideration in an amount not to exceed the greater of (x) $5,000,000 and (y) 1% of Total Assets in the aggregate for all Asset Sales following the Closing Date (provided that for purposes of this proviso any Designated Noncash Consideration which has subsequently been sold for, or otherwise converted to cash, shall not be counted against such limitation to the extent of the cash received) shall be deemed to be cash;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) the Merger and the Tender Offer may occur in accordance with the terms and conditions of the Merger Agreement and the Offer to Purchase Agreement;
(viii) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) in the case of a Subsidiary, if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(ix) any Foreign Subsidiary of Company that is not a Borrower may be merged with or into any other Foreign Subsidiary of Company that is not a BorrowerCompany, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionCompany;
(iiix) Company or any Subsidiary may lease, sublease, license or sublicense property (and surrender and terminate leases and other occupancy agreements) in the ordinary course of business and which do not materially interfere with the business of Company and its Subsidiaries or adversely affect the Collateral;
(xi) Company or any Subsidiary may abandon Intellectual Property which, in the reasonable good faith determination of Company or any Subsidiary, is uneconomical, negligible, obsolete or otherwise not material in the conduct of the business of Company or such Subsidiary;
(xii) Company or any Subsidiary may dispose of any asset subject to any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding; provided that the Net Insurance/Condemnation Proceeds received by Company or such Subsidiary shall be applied as required by subsection 2.4(B)(iii)(b);
(xiii) Company or any Subsidiary may dispose of Investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties in, joint venture agreements and similar binding arrangements; and
(xiv) 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
(iv) Company and its Subsidiaries may make Asset Sales, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (SafeNet Holding Corp), Second Lien Credit Agreement (SafeNet Holding Corp)
Restriction on Fundamental Changes; Asset Sales. Borrowers shall notNo Loan Party will, and shall not nor will it permit their respective any of its Restricted Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Restricted Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(ia) any Any Restricted Subsidiary of Borrower may be merged with or into a BorrowerBorrower or any Restricted Subsidiary thereof, 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 a BorrowerBorrower or any other Restricted Subsidiary thereof; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger or Contingent Obligation than such obligee or beneficiary had immediately prior disposition, (i) if the parties to such transaction;
merger or disposition include Borrower or a Subsidiary Guarantor, Borrower (aor, if Borrower is not a party to such merger or disposition, a Subsidiary Guarantor) shall be the continuing or surviving Person or the transferee of such disposition, and (ii) no Wholly Owned Subsidiary shall merge into, or make any Subsidiary of Company such disposition to, a Person that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Wholly Owned Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and thereof;
(b) any Excluded Subsidiary or Immaterial Foreign Subsidiary may be merged with or into any Borrower, or be liquidated, wound up or dissolved, or all or any part of dissolved to the extent its business, property or assets may be conveyed, were previously sold, leasedtransferred, transferred liquidated or otherwise disposed of, in one transaction or a series of transactions, to a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation another Group Member (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionHoldings);
(c) (i) sales of inventory in the ordinary course of business, (ii) sales, abandonments or other dispositions of property that is obsolete, damaged, worn out or surplus or no longer used or useful in the ordinary course of business of any Group Member and (iii) Company any sale, lease, transfer, conveyance or other disposition of credit card readers, kiosks and its Subsidiaries may sell or otherwise dispose similar equipment to customers in the ordinary course of assets in transactions that do not constitute business;
(d) other Asset Sales; provided, provided that (i) the consideration received Asset Sale is made for such assets shall be in an amount at least equal to the fair market value thereof; and
value, (iv) Company and its Subsidiaries may make Asset Sales, provided, that (aii) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof75% cash or Cash Equivalents; (biii) not less than 90% no Event of the consideration received Default shall have occurred and be continuing or result therefrom; and (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (eiv) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by Section 2.4(b)(iii)(A);
(e) in each case to the extent required under subsection 2.4Aentered into in the ordinary course of business, (i) licenses of Intellectual Property entered into in the ordinary course of business or the sale, transfer, conveyance, assignment, abandonment or granting of any other rights in any Intellectual Property that, in the good faith determination of Borrower, are not material to the conduct of the Group Members’ business taken as a whole and (ii) dispositions between or among Foreign Subsidiaries; and provided, that if any such disposition is made to a Person that is an Affiliate of Borrower, such disposition is made on terms that are no less favorable to any Group Member than those that could be obtained at the time in a comparable arm’s-length transaction with a Person who is not an Affiliate;
(f) a true lease, license or sublease of real property not constituting Indebtedness and not entered into as part of a sale and leaseback transaction;
(g) any sale, lease, assignment, conveyance, transfer or other disposition of any property (other than their own Capital Stock) by any Group Member (other than Holdings) to any other Group Member (other than Holdings) to the extent any resulting Investment constitutes an Investment otherwise permitted hereunder;
(i) any sale, lease, assignment, conveyance, transfer or other disposition or issuance by Holdings of its own Capital Stock to any Person, (ii) any sale, lease, assignment, conveyance, transfer or other disposition or issuance by Borrower of its own Capital Stock to Holdings, (iii) any sale, lease, assignment, conveyance, transfer or other disposition or issuance by any Restricted Subsidiary of Borrower of its own Capital Stock to any Group Member (other than Holdings);
(i) Liens expressly permitted by Section 7.2; Investments expressly permitted by Section 7.3 and Restricted Junior Payments expressly permitted under Section 7.4 in each case to the event extent constituting an Asset Sale;
(j) any sale, lease, assignment, conveyance, transfer or other disposition of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an amount equal to the Net Asset Sale Proceeds from any Asset Sale, when added of such transaction are promptly applied to the aggregate Net Asset Sale Proceeds purchase price of such replacement property;
(k) any sale, lease, assignment, conveyance, transfer or other disposition of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business;
(l) any sale, lease, assignment, conveyance, transfer or other disposition of any assets (including Voting Securities) (A) acquired in connection with any Permitted Acquisition or other Investment permitted hereunder, which assets are not used or useful to the core or principal business of Borrower and the Restricted Subsidiaries and (B) made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition; and
(m) transfers of condemned property as a result of the exercise of “eminent domain” or other similar powers to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of property arising from all foreclosure or similar action or that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement. Notwithstanding anything to the contrary in the foregoing, in no event shall any Group Member convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of any Intellectual Property that is material to the business of the Group Members, taken as a whole, to any Person other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersthan a Loan Party.
Appears in 2 contracts
Samples: Credit Agreement (EngageSmart, LLC), Credit Agreement (EngageSmart, LLC)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock Equity Interests of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged or consolidated with or into a BorrowerCompany 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, sub-leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower; provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Company or any wholly-owned Subsidiary that is not a BorrowerGuarantor; provided that, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign wholly-owned Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower Guarantor shall be a the continuing or surviving entity in any such transactionPerson;
(iiiii) Company and its Subsidiaries may sell convey, sell, transfer 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;
(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 make Asset Sales of assets having a fair market value not in excess of $35,000,000, in the case of Asset Sales of the Facilities set forth on Schedule 7.7, and $15,000,000, in the case of all other Asset Sales, provided, in each case in 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; (b) not less than 9075% of the consideration received (other than shall be Cash or Cash Equivalents, provided, however, that in the case of any consideration consisting Asset Sale to a domestic Joint Venture permitted pursuant to subsection 7.3(xi), the amount of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration Investment therein received or retained by Company and its Subsidiaries in any consideration of such Asset Sale shall be received treated as Cash solely for purposes of satisfying this requirement; (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after the date of consummation of such Asset Salegiving effect thereto; and (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a) or subsection 2.4D;
(fv) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Equity Interests of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Equity Interests of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be permitted continuing after giving effect thereto; and
(viii) Company or any Subsidiary may sell or dispose of all or any portion of the assets, or the Equity Interests of the Subsidiaries that own the assets, related to consummate the pharmacy or therapy business of Company and its Subsidiaries; provided that the proceeds of such Asset Sale without the prior written consent of Requisite Lendersasset sales are applied as required pursuant to subsection 2.4B(iii).
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.), Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.)
Restriction on Fundamental Changes; Asset Sales. Borrowers shall notNo Loan Party will, and shall not nor will it permit their respective any of its Restricted Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Restricted Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(ia) any Borrower Restricted Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; provided, provided that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company and its the Restricted 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;
(ivc) Company and its the Restricted Subsidiaries may dispose of obsolete, worn out, uneconomic or surplus property no longer used or useful in the ordinary course of business of Company;
(d) Company and the Restricted Subsidiaries may make Asset Sales, provided, ; provided that (aA) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (bB) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; (cC) not more than 10% no Potential Event of the cash consideration received by Company and its Subsidiaries in any such Asset Sale Default or Event of Default shall have occurred or be received continuing immediately after the date of consummation of such Asset Salegiving effect thereto; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (eD) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to repay the extent required under subsection 2.4ALoans in accordance with Section 2.4(b)(iv)(B) or Section 2.4(d), provided that all such Net Asset Sale Proceeds in a Fiscal Year may be applied or reinvested in accordance with Section 2.4(b)(iii)(A); and (fE) in the event that the Net such Asset Sale Proceeds from any Asset Salewould result in the sole business of the Loan Parties and the Restricted Subsidiaries being an industry sector exclusively based on the extraction or transportation of fossil fuels, when added to the aggregate Net no such Asset Sale Proceeds from will be permitted unless all other Asset Sales after the Closing Date, would exceed $10,000,000Revolving Lenders have unanimously provided their prior written consent (such consent not to be unreasonably withheld or delayed).
(e) in order to resolve disputes that occur in the ordinary course of business, Company and the Restricted Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(f) Company or a Restricted Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Restricted Subsidiary if required by applicable law;
(g) Company may perform its obligations under the Conveyance of Undivided Mineral Interest;
(h) any Person may be merged with or into Company or any Restricted Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Restricted Subsidiary would have been permitted pursuant to Section 6.3; provided that (i) in the case of Company, Company shall be the continuing or surviving Person, (ii) if a Restricted Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Restricted Subsidiary and complies with the provisions of Section 5.9 and (iii) no Potential Event of Default or Event of Default shall have occurred or be continuing immediately after giving effect thereto;
(i) any Capital Stock of any Restricted Subsidiary of Company may be sold, transferred or otherwise disposed of to Company or any other wholly-owned Restricted Subsidiary of Company (provided that, in the case of any such transfer by a Loan Party, the transferee must also be a Loan Party or constitute an Investment otherwise permitted hereunder);
(j) the cross licensing or licensing of intellectual property, in the ordinary course of business;
(k) the leasing, occupancy or sub-leasing of Real Property Assets in the ordinary course of business that would not materially interfere with the required use of such Real Property Asset by any Loan Party;
(l) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Government Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement;
(m) Liens expressly permitted by Section 6.2;
(n) Restricted Junior Payments expressly permitted by Section 6.5;
(o) Investments permitted by Section 6.3; or
(p) Company and the Restricted Subsidiaries may dispose of any non-core assets for Cash acquired in connection with a Permitted Acquisition that Company determines in good faith will not be permitted useful to consummate such Asset Sale without the prior written consent business of Requisite LendersCompany.
Appears in 2 contracts
Samples: Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.)
Restriction on Fundamental Changes; Asset Sales. Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise), in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower may be merged with or into a Borrower, 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 a Borrower; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower; provided further, providedthat, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iv) Company and its Subsidiaries may make Asset Sales, provided, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any non-cash consideration received shall be reasonably satisfactory to Agents; (e) the principal documentation for each such Asset Sale shall have been delivered in advance to Agents; (f) upon consummation of each such Asset Sale, neither Company nor any of its Subsidiaries shall have any debts or obligations, contingent or otherwise, relating to the sold entities or assets (other than customary indemnification obligations and purchase price adjustment obligations incurred in connection with such Asset Sale); (g) any Indebtedness in relation to the such assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (eh) any Asset Sale or series of related Asset Sales (1) in which the consideration to be received (other than the assumption of liabilities related to such assets) exceeds $15,000,0000 shall require the prior written consent of the Requisite Lenders, (2) of the Quezon Project or involving any assets or property comprising the Quezon Project shall require the prior written consent of Requisite Lenders and (3) in which the consideration to be received (other than the assumption of liabilities related to such assets) exceeds $5,000,000 shall require the delivery no later than 30 days prior to the consummation of such Asset Sale or Asset Sales of an independent appraisal of the fair market value of such assets subject thereto which appraisal shall be performed by an appraiser satisfactory to Agents and shall be in form and substance satisfactory in all respects to Agents and (i) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A;
(v) Any Subsidiary of Company may, if its Board of Directors determines that doing so is in the best interests of such Subsidiary, change its legal form of organization to a limited liability company, a corporation or a limited partnership; provided that (a)
(1) if such Subsidiary is a Borrower, such Subsidiary shall have executed such documents as Administrative Agent reasonably deems necessary to ensure that such Subsidiary continues to be bound as a Borrower under the Loan Documents after such change and (f2) in if all or any portion of the event that equity interests of such Subsidiary are subject to Liens created under the Net Asset Sale Proceeds from any Asset SaleCollateral Documents prior to such change, when added the same percentage of the equity interests of such Subsidiary shall continue to be subject to Liens under the aggregate Net Asset Sale Proceeds from all other Asset Sales Collateral Documents after the Closing Datesuch change, would exceed $10,000,000with such Liens being of equal or higher priority than before such change and, if perfected prior to such change, perfected, and (b) Company and its Subsidiaries shall not be permitted have complied with the provisions of the Collateral Documents applicable to consummate such Asset Sale without change of legal form; and
(vi) Covanta Energy India (Balaji) Ltd. may sell approximately 372,860 shares held by it on the prior written consent Closing Date in the Madurai Project entity, Madurai Power Corp. Pvt. Ltd. (the "MADURAI PROJECT ENTITY"), to the Indian local partner with respect to the Madurai Project for approximately $575,000 (it being understood that such amount is the approximate Dollar equivalent of Requisite Lendersan estimate as of November 15, 2003 of the proceeds from such sale, and thus may change based on fluctuations in currency exchange rates), to the extent such local partner requires such sale so that such local partner will hold, after giving effect to such sale, up to 25.2% of the issued and outstanding Capital Stock of the Madurai Project Entity.
Appears in 2 contracts
Samples: Credit Agreement (Covanta Energy Corp), Credit Agreement (Danielson Holding Corp)
Restriction on Fundamental Changes; Asset Sales. Borrowers The Company shall not, and shall not permit their respective any of its Restricted Subsidiaries to, alter the legal form of organization of Company or any of 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 consummate any Asset Sale (including by discount or compromise), in one transaction or a series Asset Sales of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Restricted Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired), except:
(i) any Borrower Restricted Subsidiary of the Company (other than the UK Borrower) may be merged with or into a Borrowerthe Company or any 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 a Borrower; providedthe Company or any Guarantor, that no such transaction shall result provided that, in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, the Company or Contingent Obligation than such obligee Guarantor shall be the continuing or beneficiary had immediately prior to such transaction;
surviving Person; (aii) any Foreign Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary Foreign Subsidiary, provided that, in the case of Company that is not such a merger involving the UK Borrower, the UK Borrower shall be the continuing or surviving Person, and (iii) any Foreign Subsidiary (other than the UK 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee Company or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and Restricted Subsidiary;
(b) any Immaterial Foreign Subsidiary [reserved];
(c) the Company and its Restricted Subsidiaries may be merged with dispose of obsolete, worn out or into any Borrower, or be liquidated, wound up or dissolved, or all or any part of its business, surplus property or property that is no longer useful in its business in the ordinary course of business;
(d) the Company and its Restricted Subsidiaries (i) may make Asset Sales so long as, after giving effect thereto, the aggregate fair market value of all assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series pursuant to this subclause (i) does not exceed the greater of transactions, to a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction $20,000,000 and (2) 5% of Consolidated Tangible Assets (as of the relevant Borrower shall be a surviving entity in any such transaction;
end of most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 7.01(b) or 7.01(c)) and (iiiii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Salesthe Company’s headquarters located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxx; provided, that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
(iv) Company and its Subsidiaries may make Asset Sales, provided, provided that (aA) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (bB) not less than 9075% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash Cash or Cash Equivalents; and (it being agreed that cash the receipt C) no Event of which may by the relevant terms of such Asset Sale Default shall have occurred or be deferred more than six months continuing after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; giving effect thereto;
(e) the Net Asset Sale Proceeds Company and its Restricted Subsidiaries may sell real property located in Sleaford, England owned by any Restricted Subsidiary of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and Company;
(f) in order to resolve disputes that occur in the event that ordinary course of business or settle delinquent or overdue accounts, the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Restricted Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(g) the Company or a Restricted Subsidiary may sell or dispose of shares of Capital Stock of any of its Restricted Subsidiaries in order to qualify members of the Governing Body of the Restricted Subsidiary if required by applicable Law;
(h) any Person may be merged with or into or consolidated with the Company or any Restricted Subsidiary if the acquisition of the Capital Stock of such Person by the Company or such Restricted Subsidiary would have been permitted pursuant to Section 8.03; provided that (i) in the case of the Company, the Company shall be the continuing or surviving Person, (ii) in the case of the UK Borrower, the UK Borrower shall be the continuing or surviving Person, (iii) if a Restricted Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Restricted Subsidiary and complies with the provisions of Sections 7.08 and 7.09 to the extent applicable to such Person and (iv) no Default shall have occurred or be continuing after giving effect thereto;
(i) the Company or a Restricted Subsidiary may, in the ordinary course of business, dispose of or terminate Hedge Agreements;
(j) the Company and its Restricted Subsidiaries may grant licenses to use Intellectual Property in a manner not prohibited by the Loan Documents and not interfering in any material respect with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;
(k) the Company and its Restricted Subsidiaries may settle accounts receivable owing to the Company or any of its Restricted Subsidiaries in connection with the making of loans permitted to consummate such Asset Sale without by Section 8.03(i);
(l) the prior written consent Company and its Restricted Subsidiaries may transfer property as a result of Requisite Lenderscasualty or condemnation events;
(m) the Company and its Restricted Subsidiaries may enter into leases and subleases of real and personal property in the ordinary course of business;
(n) the Company and its Restricted Subsidiaries may use Cash or Cash Equivalents in transactions not prohibited by this Agreement; and
(o) the Company and its Restricted Subsidiaries may make and dispose of inventory in the ordinary course of business.
Appears in 2 contracts
Samples: Credit Agreement (FTD Companies, Inc.), Credit Agreement (United Online Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Holdings and Company shall not, and shall not permit any of their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease sublease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a SubsidiarySubsidiary of Company, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(ii) Company and its Subsidiaries may sell or otherwise dispose of inventory in the ordinary course of business;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus assets or of assets no longer used or useful in the conduct of the business of Company and its Subsidiaries, in each case, in the ordinary course of business or may otherwise sell, lease, transfer or otherwise dispose or exchange assets to the extent not constituting Asset Sales;
(iv) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $1,500,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof determined in good faith by the board of director of Company (or any Officer of Company delegated authority to make such determinations by such board of directors); (b) the consideration received shall be at least 75% cash; provided that for purposes of this subclause (b) any Designated Noncash Consideration in an amount not to exceed $500,000 (provided that for purposes of this proviso any Designated Noncash Consideration which has subsequently been sold for, or otherwise converted to cash, shall not be counted against such limitation to the extent of the cash received) shall be deemed to be cash; and (c) after giving effect to such Asset Sale, Company shall be in Pro Forma Compliance;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise or sell for less than the face value thereof, notes or accounts receivable;
(vi) Company or any of its Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiary in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(vii) the Merger may occur in accordance with the terms and conditions of the Merger Agreement;
(viii) any Person may be merged with or into Company or any of its Subsidiaries if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) in the case of a Subsidiary of Company, if such Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary of Company that is not a Borrower and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(ix) any Foreign Subsidiary of Company may be merged with or into any other Foreign Subsidiary of Company that is not a BorrowerCompany, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionCompany;
(iiix) Company or any of its Subsidiaries may lease, sublease, license or sublicense property (and surrender and terminate leases and other occupancy agreements) in the ordinary course of business and which do not materially interfere with the business of Company and its Subsidiaries or materially adversely affect the Collateral taken as a whole;
(xi) Company or any of its Subsidiaries may abandon Intellectual Property which, in the reasonable good faith determination of Company or such Subsidiary, is uneconomical, negligible, obsolete or otherwise not material in the conduct of the business of Company or such Subsidiary;
(xii) Company or any of its Subsidiaries may dispose of any asset subject to any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding; provided that the Net Insurance/Condemnation Proceeds received by Company or such Subsidiary shall be applied as required by subsection 2.4(B)(iii)(b);
(xiii) Company or any of its Subsidiaries may dispose of Investments in Joint Ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties in, joint venture agreements and similar binding arrangements;
(xiv) Company or any of 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 property to the fair market value thereofextent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sale or other disposition are promptly applied to the purchase price of such replacement property; and
(ivxv) Holdings, Company and its Subsidiaries may make Asset SalesInvestments permitted by subsection 7.3, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may incur Liens permitted by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received subsection 7.2 and make Restricted Junior Payments permitted by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders7.4.
Appears in 2 contracts
Samples: Credit Agreement (IntraLinks Holdings, Inc.), Credit Agreement (IntraLinks Holdings, Inc.)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case 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, except:
(i) any Borrower may be merged with or into a Borrower, or be liquidated, wound up or dissolved, or all or any part Subsidiary 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 a Borrower; provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation Company (other than the Obligationsany Borrower) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged merged, consolidated or amalgamated with or into any other Borrower or any Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 Borrower or any Subsidiary of any Borrower; provided that, in the case of such a merger, consolidation or amalgamation with any Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a the continuing or surviving entity in any corporation and provided further that immediately after giving effect to such transactionmerger, consolidation or amalgamation, no Potential Event of Default or Event of Default shall have occurred and be continuing;
(ii) (Reserved);
(iii) subject to subsection 6.10, Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales;
(iv) Company and its Subsidiaries may make Asset Sales; provided, provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof and that such Asset Sales do not involve the sale or other disposition, in one transaction or a series of transactions, of all or any substantial part of the business, property or fixed assets of the Company and its Subsidiaries; and provided, further, that after any such Asset Sales no Potential Event of Default or Event of Default shall have occurred and be continuing; and
(ivv) Company Borrowers and its their respective Subsidiaries may make Asset Salesacquire Securities or assets of another Person, providedincluding existing Subsidiaries, or create additional Subsidiaries; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related after giving effect to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000acquisition, Company and its Subsidiaries shall not will be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders.in compliance with all covenants set forth in Sections 5 and 6. 128
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Each of Parent and Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Parent or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (x) any Subsidiary of Borrower may be merged with or into Borrower 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 Borrower or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving Person, (y) any Foreign Subsidiary of Borrower may be merged with or into any other Foreign Subsidiary of Borrower, 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 Foreign Subsidiary of Borrower and (z)
(1) Borrower and any Subsidiary of Borrower may convert from a Borrower; providedcorporation to a limited liability company (or, that no such transaction shall result in the obligee or beneficiary respect of any Indebtedness Canadian Subsidiary, an unlimited liability company), or Contingent Obligation vice versa, and (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a2) any Subsidiary of Company that is not a Borrower may be merged with change its jurisdiction of incorporation or into any other Subsidiary of Company that is not a Borrower, 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 offormation, in one transaction or either case so long as (a) if any such Subsidiary was a series of transactions, to another Domestic Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior before giving effect to such transaction; and conversion or change, it will continue to be a Domestic Subsidiary after giving effect to such conversion or change, (b) if any Immaterial Foreign such Subsidiary was a Subsidiary Guarantor before giving effect to such conversion or change, it will continue to be a Subsidiary Guarantor after giving effect to such conversion or change, (c) in the case of the conversion of Borrower from a corporation to a limited liability company, Borrower shall provide in its limited liability company constituent documents that its membership interests shall constitute "Securities" within the meaning of Article 8 of the Delaware UCC and one or more certificates representing all such membership interests shall be pledged by Parent to Administrative Agent, for the benefit of Lenders, promptly following such conversion of Borrower, (d) if the Capital Stock of such Subsidiary was pledged to Administrative Agent (or to any Supplemental Collateral Agent), for the benefit of Lenders, before giving effect to such conversion or change, it will continue to be (or will immediately become) pledged to Administrative Agent (or to a Supplemental Collateral Agent), for the benefit of Lenders, after giving effect to such conversion or change, (e) Borrower shall deliver a written notice under subsection 6.1(xv) with respect to such Subsidiary as though such Subsidiary had become a Subsidiary of Parent or Borrower as a result of such conversion or change (it being understood that such written notice shall be deemed to supplement Schedule 5.1 annexed hereto for all purposes of this Agreement), and (f) Borrower shall, and shall cause the other Loan Parties to, give notice of such conversion or change in accordance with the Security Agreement, deliver updated schedules to the Security Agreement, take such other actions as may be merged with or into any Borrowerrequired under the Security Agreement, or this Agreement, and the other Loan Documents, and take such further actions (including, without limitation, actions similar to those contemplated by subsections 6.8 and 6.9 of this Agreement) as may be liquidatednecessary or, wound up or dissolvedin the opinion of Administrative Agent, or desirable in order to continue and maintain the existence, attachment, perfection, and priority of all Liens in favor of Administrative Agent (or any part Supplemental Collateral Agent), for the benefit of its businessLenders, property on the Capital Stock or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior as in effect before giving effect to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionconversion or change;
(iiiii) Company Borrower 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;
(iii) Notwithstanding clause (ii) above, Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company Borrower and its Subsidiaries may make (A) the Concrete Construction Asset Sales, provided, Sale and (B) Asset Sales (other than the Concrete Construction Asset Sale) of assets having a fair market value not in excess of $20,000,000 in any Fiscal Year and $40,000,000 in the aggregate for all such Asset Sales during the term of this Agreement; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) the sole consideration received shall consist of not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D;
(v) in order to resolve disputes that occur in the extent ordinary course of business, Borrower and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Borrower or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required under by applicable law;
(vii) Any Person may substantially simultaneously be merged or consolidated with or into Borrower or any Subsidiary if the acquisition of the Capital Stock of such Person by Borrower or such Subsidiary would have been permitted pursuant to subsection 2.4A7.3; and provided that (fa) in the event that case of Borrower, Borrower shall be the Net Asset Sale Proceeds from any Asset Salecontinuing or surviving Person, when added (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto; and
(viii) Parent may issue and sell the Sponsor Preferred Stock to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersSponsor.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Borrower or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case 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 (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of Borrower's, or any of its Subsidiaries', business) except:
(i) a. any Subsidiary of Borrower may be merged with or into a Borrower, or any wholly-owned Subsidiary of Borrower, 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 a BorrowerBorrower or any wholly-owned Subsidiary; providedprovided that, that no such transaction shall result (i) in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a merger, Borrower, or a Subsidiary Guarantor or a Material Subsidiary shall be liquidatedthe continuing or surviving Person if any of the entities involved in the transaction was Borrower, wound a Subsidiary Guarantor or a Material Subsidiary and (ii) if a merger results in a Subsidiary becoming a Subsidiary Guarantor or a Material Subsidiary, such Subsidiary shall comply with the requirements of Subsection 6.8 and/or Subsection 6.9, (iii) in the case of such a liquidation, winding up or dissolveddissolution, or all or any part of its businessthe assets of such Subsidiary are transferred to Borrower, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction a Subsidiary Guarantor or a series of transactions, to another Material Subsidiary that is not a Borrowerwholly owned, provideddirectly or indirectly, that no such transaction shall result in the obligee by Borrower or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 as otherwise disposed of, in one transaction or a series of transactions, to a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionexpressly permitted under this Agreement;
(iii) Company b. Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted under Subsection 7.8;
c. Borrower 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; and119
(iv) Company d. Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
e. Borrower and its Subsidiaries may make Asset Sales, provided, Sales to Persons who are not Affiliates of Borrower and its Subsidiaries of assets having a fair market value not in excess of $25,000,000 in the aggregate; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by Subsection II.D.2.c(1) or Subsection II.D.4; and
f. Any Person may be merged with or into Borrower or any Subsidiary of Borrower if the acquisition of the Capital Stock of such Person by Borrower or such Subsidiary would have been permitted pursuant to the extent required under subsection 2.4ASubsections VII.C and H; and provided that (fa) in the event that case of Borrower, Borrower shall be the Net Asset Sale Proceeds from any Asset Salecontinuing or surviving Person, when added to (b) if a Subsidiary of Borrower is not the aggregate Net Asset Sale Proceeds from all other Asset Sales surviving or continuing Person, the surviving Person becomes a Subsidiary of Borrower and complies with the provisions of Subsections VI.H and VI.I and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersgiving effect thereto.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of its Subsidiaries, create any new 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise any part of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any wholly owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any substantial 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 a BorrowerCompany or any wholly owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving corporation;
(aii) any Subsidiary of Company that is not a Borrower and its Subsidiaries may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionmake Consolidated Capital Expenditures permitted under subsection 7.6D;
(iii) Company and its Subsidiaries may acquire inventory, equipment and other assets 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; andthereof (determined in good faith by the board of directors of Company);
(ivv) Company and its Subsidiaries may make any Asset SalesSale of assets that have, providedin the aggregate, a fair market value (determined in good faith by the board of directors of Company) not in excess of 10% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior to such Asset Sale; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (determined in good faith by the board of directors of Company); (by) not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash cash; and (it being agreed that cash z) 115 the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a); and
(vi) Company or any Subsidiary of Company may make acquisitions of assets and businesses (including acquisitions of the capital stock or other equity interests of another Person), provided that:
(a) immediately prior to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from after giving effect to any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000such acquisition, Company and its Subsidiaries shall not be permitted in compliance with the provisions of subsection 7.11 hereof;
(b) after giving effect to consummate any such Asset Sale without acquisition, the prior written consent sum of Requisite Lenders(x) the amount of cash on hand of Company plus (y) the amount by which the Revolving Loan Commitments exceed the Total Utilization of Revolving Loan Commitments, shall equal or exceed $40,000,000;
(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, (2) the Senior Leverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall be less than 3.75:1.00 in Fiscal Years 1998 and 1999, 3.50:1.00 in Fiscal Years 2000 and 2001, and 3.25:1.00 thereafter and (3) 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 and as to the matters referred to in subsections 7.7(vii)(a) and (b) above;
(d) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of the Administrative Agent on behalf of Lenders pursuant to the Collateral Documents; and
(e) each such acquisition shall be made on a fully consensual basis between Company and its Subsidiaries, on the one hand, and the seller or sellers of such assets or such business, on the other hand.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryassets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary of Company that is not a Borrower Subsidiary Guarantor may be merged with or into any other Subsidiary of the Company that is not a BorrowerSubsidiary 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 another any Subsidiary of the Company that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionGuarantor;
(iii) an Asset Sale identified on Schedule 7.7;
(iv) assignments and licenses of Intellectual Property of Company or any Subsidiary between or among Company and its Subsidiaries, and licenses (a) to joint ventures or (b) in the ordinary course of business;
(v) leases of owned real property and subleases of leased real property, in each case, not used in the operations of Company and its Subsidiaries;
(vi) 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 (other than assets described in clause (iii)(b) of the definition of Asset Sale) shall be in an amount at least equal to the fair market value thereof; andthereof (as determined in good faith by the Company);
(ivvii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(viii) Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having a net book value on the Company’s books and records not in excess of $10,000,000 in 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 thereofthereof (as determined in good faith by the Company); (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; and (c) not more than 10% no Potential Event of the cash consideration received by Company and its Subsidiaries in any such Asset Sale Default or Event of Default shall have occurred or be received continuing after the date of consummation of such Asset Sale; giving effect thereto;
(d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (fix) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries shall not be may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(x) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(xi) Any transaction permitted pursuant to consummate subsection 7.3 or 7.10;
(xii) Company and its Subsidiaries may sell or otherwise dispose of Cash Equivalents for fair value;
(xiii) Company and its Subsidiaries may sell or otherwise dispose of specific items of equipment so long as the purpose of such Asset Sale without sale or disposition is to acquire replacement items of like-kind equipment or other equipment used or useful in the prior written consent conduct of Requisite Lenders.the business of Company or any of its Subsidiaries; and
Appears in 1 contract
Samples: Credit Agreement (Hexcel Corp /De/)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of its Subsidiaries, create any new 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise any part of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any domestic Wholly Owned Subsidiary of Company, or be liquidated, wound up or dissolved, or all or any substantial 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 a BorrowerCompany or any domestic Wholly Owned Subsidiary of Company; providedprovided that, that no such transaction shall result in the obligee case of such a merger, Company or beneficiary of any Indebtedness such Wholly Owned Subsidiary shall be the continuing or Contingent Obligation surviving corporation;
(ii) Company and its Subsidiaries may acquire inventory (other than the Obligations) having greater recourse to receivables portfolios), equipment and other assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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; andthereof (determined in good faith by the board of directors of Company);
(iv) Company and its Subsidiaries may make any Asset SalesSale of assets that have, providedin the aggregate, a fair market value (determined in good faith by the board of directors of Company) not in excess of 20% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior to such Asset Sale; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (determined in good faith by the board of directors of Company); (by) not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale therefor shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to required by subsection 2.4B(iii)(a);
(v) Company may make acquisitions of receivables portfolios and other assets and businesses (including acquisitions of the extent required under subsection 2.4A; and capital stock of another Person), provided that:
(fa) in the event that the Net Asset Sale Proceeds from aggregate amount of all such acquisitions in any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, Fiscal Year would exceed $10,000,0005,000,000 after giving effect to any such proposed acquisition, Company and its Subsidiaries (x) the Interest Coverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall not be permitted less than the ratio set forth in subsection 7.6A applicable at the time of such acquisition and (y) the Leverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall not be greater than the ratio set forth in subsection 7.6B applicable at the time of such acquisition;
(b) the aggregate amount expended for Permitted Acquisitions (other than pursuant to subsection 7.7(vi)) after the Effective Date shall not exceed $60,000,000;
(c) any receivables portfolio acquired shall be a Qualified Loan Portfolio;
(d) the aggregate amount expended for Permitted Portfolio Acquisitions during any Fiscal Year together with the aggregate amount of all Investments made pursuant to subsection 7.3(v)(c) during such Fiscal Year shall not exceed $60,000,000;
(e) that portion of Consolidated EBITDA attributable to any assets so acquired in any single acquisition or series of related acquisitions, as projected by Company for the twelve- month period immediately following the date of such acquisition or the date of the first of such series of related acquisitions, as the case may be, shall not exceed 20% of Consolidated EBITDA for the four Fiscal Quarter period most recently ended prior to the date of such acquisition, and Company shall have delivered an Officer's Certificate to Co- Administrative Agents (together with supporting information therefor) to the foregoing effect; and
(f) 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
(vi) Company may consummate such Asset Sale without the Tender Offer on the Effective Date and the Union Merger on the Delayed-Draw Term Loan Funding Date. Notwithstanding the foregoing, prior written consent to the Union Merger Date, Merger Sub may directly or indirectly sell, assign, pledge or encumber any shares of Requisite LendersUnion Common Stock owned by it for cash and for fair market value so long as the proceeds thereof are held as Cash or Cash Equivalents.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Foreign Subsidiary of Company that is not a Borrower Subsidiary Guarantor may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute or are excluded from the definition of 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;
(iv) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business, including the abandonment of any trademarks, trade names or other intellectual property no longer useful in the business of the Loan Parties;
(v) Company and its Subsidiaries may make Asset SalesSales of assets having an aggregate, provided, cumulative fair market value not in excess of $400,000 per 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; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))at least 75% cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a) or subsection 2.4D;
(fvi) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law; and
(viii) Any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenderscontinuing after giving effect thereto.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Borrower shall not, and nor shall not it permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Borrower or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock stock or other ownership interests of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Subsidiary of Borrower may be merged with or into a BorrowerBorrower or any 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 a BorrowerBorrower or any Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Borrower or Contingent Obligation than such obligee Guarantor shall be the continuing or beneficiary had immediately prior to such transaction;
(a) surviving Person; any Subsidiary of Company that is not a Borrower Foreign Loan Party may be merged with or into any other Subsidiary Foreign Loan Party in the same Approved Jurisdiction or into any other Foreign Loan Party to the extent a part of Company that is not a Borrowerthe UK Restructuring, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result any other Foreign Loan Party in the obligee same Approved Jurisdiction or beneficiary to Harnischfeger Holdings Ltd. (“HHL”) to the extent part of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionUK Restructuring, provided that at all times HHL constitutes an Immaterial Subsidiary; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, providedany Guarantor, that (1) no such transaction shall result any other Immaterial Subsidiary or any Foreign Loan Party, and the Australian Restructuring may be completed as described in the obligee definition thereof or beneficiary of any Indebtedness or Contingent Obligation (on such other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse terms and conditions as are acceptable to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionAgent;
(iiiii) Company Borrower 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;
(iii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business, and may engage in Third Party Financings;
(iv) Company Borrower and its Subsidiaries may make Asset Sales, provided, Sales resulting in Net Asset Sale Proceeds not in excess of $8,000,000 in any Fiscal Year or $25,000,000 in the aggregate from the Effective Date through the date of determination; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the greater of (i) the fair market value thereof, and (ii) the appraised value thereof (as determined by Agent); (by) not less than 90% at least seventy-five percent (75%) of the consideration received (shall be cash, provided that all non-cash consideration and promissory notes and other than evidence of any consideration consisting obligation of the assumption of liabilities related purchaser to make future payments in connection with such assets) in any such Asset Sale sale shall be pledged to, and subject to a First Priority Lien in favor of, Agent for the benefit of Lenders pursuant to the Collateral Documents, and further provided that such non-cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale consideration shall not be considered cash for purposes of this clause exceed $1,000,000 in the aggregate outstanding at any time; and (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a) or subsection 2.4D;
(fv) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company Borrower and its Subsidiaries may make exchanges or trade-ins of machinery and equipment, provided that the cash proceeds from any such transaction shall not be applied as required by subsection 2.4B(iii)(a) or subsection 2.4D;
(vi) Borrower or a Subsidiary may sell or dispose of shares of capital stock or other equity Securities of any of its Subsidiaries, in order to qualify members of the Governing Body of the Subsidiary if required by applicable law; and
(vii) Borrower and its Subsidiaries may make and maintain Investments permitted pursuant to consummate such Asset Sale without the prior written consent of Requisite Lenderssubsection 7.3.
Appears in 1 contract
Samples: Credit Agreement (Joy Global Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall notnot alter its corporate or legal structure, and Company shall not and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or Subsidiaries to 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any wholly-owned Subsidiary Guarantor, provided that in such case Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving Person, or be liquidated, wound up or dissolved, dissolved or all or any part of its the business, property or assets of any Subsidiary of Company may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower; provided, that no such transaction shall result in the obligee Company or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionwholly-owned Subsidiary Guarantor;
(aii) any Foreign Subsidiary of Company that is not a Borrower Subsidiary Guarantor may be merged with or into any other Foreign Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iv) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(v) Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $50,000,000 in the aggregate after the Closing Date; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a) or subsection 2.4D;
(fvi) in order to resolve disputes (or settle with non-paying account debtors) that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if and to the extent required by Applicable Law;
(viii) the Acquisition may occur in accordance with the terms and conditions of the Acquisition Agreement and the Foreign Mergers may occur in accordance with subsection 6.12;
(ix) Company may sell AF&F Brazil to the Seller or any other Person in accordance with the terms of the Acquisition Agreement; and
(x) any Person (other than Company or any Subsidiary of Company) may be merged with or into Company or any Subsidiary of Company, and Company or any Subsidiary of Company may merge with any such Person, if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3, provided that:
(a) in the case of a merger with or into Company, Company shall be the continuing or surviving Person;
(b) in the case of a merger with or into a Subsidiary Guarantor, the Subsidiary Guarantor shall be the continuing or surviving Person;
(c) in the case of any other merger, if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary of Company and complies with the provisions of subsection 6.8, and
(d) no Potential Event of Default or Event of Default shall have occurred or be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenderscontinuing immediately after giving effect thereto.
Appears in 1 contract
Samples: Credit Agreement (Propex International Holdings II Inc.)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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), license, transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryassets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany, Globe or any other Loan Party, 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 a BorrowerCompany or any other Loan Party; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company, Globe or Contingent Obligation than such obligee other Loan Party shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary of Company (a) that is not a Borrower Loan Party may be merged with or into any other Subsidiary of Company that is not a BorrowerCompany, 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 another any Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; Company and (b) any Immaterial Foreign Subsidiary that is a Loan Party may be merged with or into any Borrowerother Loan Party, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionLoan Party;
(iii) the Loan Parties and their Subsidiaries may sell their accounts receivable in connection with A/R Securitization Programs; provided, that the aggregate outstanding amount (such amount based on the amount owed to the Loan Parties under such account receivable) of all such accounts receivable subject to the A/R Securitization Programs at any time shall not exceed $250,000,000;
(iv) assignments and licenses of Intellectual Property of Company or any Subsidiary between or among Company and its Subsidiaries, and licenses (a) to Joint Ventures or (b) in the ordinary course of business;
(v) leases of owned real property and subleases of leased real property, in each case, not interfering in any material respect with the operations of Company and its Subsidiaries;
(vi) 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 (other than assets described in clause (iii)(c) or (d) of the definition of Asset Sale) shall be in an amount at least equal to the fair market value thereof; andthereof (as determined in good faith by Company);
(ivvii) Company and its Subsidiaries may dispose of used, obsolete, worn out or surplus property in the ordinary course of business;
(viii) Company and its Subsidiaries may make Asset SalesSales of assets having a net book value on Company’s books and records not in excess of the greater of (a) $35,000,000 in any Fiscal Year or (b) to the extent (y) the Company and its Subsidiaries shall be in Pro Forma Compliance and (z) the Consolidated Net Leverage Ratio does not exceed 2.75 to 1.00 on a Pro Forma Basis, provided$100,000,000 in any Fiscal Year (to the extent such Asset Sale is a Material Event or to the extent the Consolidated Net Leverage Ratio as of the end of the most recent Fiscal Quarter for which a Compliance Certificate has been delivered was greater than 2.00 to 1.00, Company shall deliver to Administrative Agent an Officer’s Certificate (in form and substance satisfactory to Administrative Agent and including detailed calculations) certifying compliance with clauses (y) and (z) above); provided that (ai) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (as determined in good faith by Company); (bii) not less than 90at least 75% of the consideration received shall be cash; (other than iii) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto and (iv) the proceeds of any consideration consisting Asset Sales in excess of $50,000,000 shall be used to immediately repay the assumption of liabilities related to such assetsLoans;
(ix) in any such Asset Sale shall be cash (it being agreed order to resolve disputes that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may sell, transfer, dispose of or discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(x) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(xi) Any transaction permitted pursuant to subsection 7.3 or 7.10;
(xii) Company and its Subsidiaries may sell or otherwise dispose of Cash Equivalents for fair value;
(xiii) Company and its Subsidiaries may sell or otherwise dispose of specific items of equipment so long as the purpose of such sale or disposition is to acquire replacement items of like-kind equipment or other equipment used or useful in the conduct of the business of Company or any of its Subsidiaries;
(xiv) leases, assignments and licenses of personal property in the ordinary course of business;
(xv) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Company and its Subsidiaries;
(xvi) dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the Joint Venture parties set forth in Joint Venture arrangements and similar binding arrangements;
(xvii) the disposition or sale of any assets acquired in connection with any Permitted Acquisition in contemplation that such assets would be sold to a third party; provided, that, (i) such assets are sold for consideration not less than the value attributed to such assets in the calculation of the aggregate consideration for such Permitted Acquisition and (ii) such disposition or sale occurs within one (1) year of the consummation of such Permitted Acquisition;
(xviii) the winding up, liquidation or dissolution of a Subsidiary that is not a Material Subsidiary; and
(xix) (A) any disposition of the Energy Assets, including pursuant to the Energy Sale; provided, that (a) all Capital Lease obligations and other Indebtedness associated with the Spanish Energy Assets shall not be permitted paid in full or assumed by the purchaser thereof upon consummation of such disposition and (b) to consummate the extent Liquidity (on a pro forma basis after giving effect to the receipt of the proceeds from such Asset Sale without disposition and the prior written consent payments required pursuant to clause (a)) is less than $250,000,000, an amount equal to the lesser of Requisite Lenders(1) the remaining net proceeds of such disposition after giving effect to the payments required pursuant to clause (a) and (2) $25,000,000 shall be deposited into a blocked account held with the Administrative Agent and be subject to a control agreement in form and substance reasonably acceptable to the Administrative Agent (the “Energy Account”) and (B) the French Hydro-electric Sale.
Appears in 1 contract
Samples: Credit Agreement (Ferroglobe PLC)
Restriction on Fundamental Changes; Asset Sales. Company shall at no time create, acquire or otherwise have any direct Subsidiary other than Finance Sub. Borrowers shall not, and shall not permit their respective Subsidiaries any Restricted Subsidiary to, alter the corporate, capital or legal form structure of organization of Company Borrowers or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryassets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Restricted Subsidiary of Company may be merged with or into a Borrowerany 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 a Borrowerany Wholly Owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, such Wholly Owned Subsidiary Guarantor shall be the continuing or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionsurviving corporation;
(aii) any Subsidiary Borrowers and Restricted Subsidiaries may dispose of Company that is not a Borrower may be merged with obsolete, worn out or into any other Subsidiary of Company that is not a Borrower, or be liquidated, wound up or dissolved, or all or any part of its business, surplus property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company Borrowers and its Restricted 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;
(iv) subject to subsection 6.13, Borrowers and Restricted Subsidiaries may during any Fiscal Year make Asset Sales of assets which generated revenues comprising not more than 15% of consolidated revenues of Company and its Restricted Subsidiaries may make Asset Sales, provided, for the prior 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; (b) not less than 9075% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a);
(v) Company may issue (a) common stock and warrants to purchase common stock, (b) the Bridge Preferred and/or the Committed Preferred having terms (other than pricing) substantially identical (and in any event with no changes which are adverse to the Lenders) to those set forth in the certificates of designation in the forms of Exhibit XV and Exhibit XVI, respectively, annexed hereto or, to the extent required under subsection 2.4A; the terms of the Bridge Preferred or Committed Preferred are not substantially identical to such terms, such non-conforming terms (1) relate to which holders or the percentage of holders that may exercise voting rights or consent to amendments and waivers, (2) are to the seniority, registration rights or anti-dilution provisions, or (3) are to the covenant or default provisions as long as such covenants and defaults as so modified are no more restrictive to the Company than those set forth in Exhibit XV and Exhibit XVI, respectively, and (fc) in the event other preferred stock and warrants to purchase preferred stock; provided that the Net terms of such preferred stock and warrants to purchase preferred stock referenced in this clause (c) are approved by Requisite Lenders;
(vi) Borrowers and Restricted Subsidiaries may make Asset Sale Proceeds from any Sales consisting of dispositions of assets pursuant to Use Agreements, provided that the proceeds of such Asset SaleSales shall be applied as required pursuant to subsection 2.4B(iii)(a);
(vii) ACSI may make ACSI Network Sales; and
(viii) Borrowers may sell all of the Capital Stock or all or substantially all of the assets of ACSI and/or Cybergate, when added provided that the consideration received therefor shall 97 be in an amount at least equal to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company fair market value thereof and its Subsidiaries shall not be permitted subject to consummate such Asset Sale without the prior written consent of documentation in form and substance reasonably satisfactory to Requisite Lenders.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock stock or other ownership interests of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof as reasonably determined by the Company's Chief Financial Officer or Chief Executive Officer;
(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 make Asset Sales of "Project Alpha" and of "Project Beta," as such Assets Sales have been identified and described by Company in a letter to Agent dated of even date with this Agreement; provided that the consideration received for such Asset Sales shall be equal to the fair market value thereof as reasonably determined by the Company's Chief Financial Officer or Chief Executive Officer;
(v) Company and its Subsidiaries may make Asset Sales of assets located in the United States having an aggregate fair market value not in excess of $5,000,000 in any Fiscal Year and of assets located outside of the United States having an aggregate fair market value not in excess of $5,000,000 in any Fiscal Year; provided that in each case the consideration received for such assets shall be in an amount at least equal to the fair market value thereof as reasonably determined by the Company's Chief Financial Officer or Chief Executive Officer;
(vi) Company or a Subsidiary may sell or dispose of shares of capital stock or other equity Securities of any of its Subsidiaries, in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) any non-Subsidiary of Company that is not a Borrower Guarantor may be merged with or into any other non-Subsidiary of Company that is not a BorrowerGuarantor, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionnon-Guarantor Subsidiary;
(iii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided, that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
(ivviii) Company and its Subsidiaries may make Asset Sales, provided, Sales in connection with sale and leaseback transactions provided that (a) the consideration received for such assets shall be in an amount at least equal to the aggregate fair market value thereof; (b) not less than 90% as reasonably determined by the Company's Chief Financial Officer or Chief Executive Officer of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months assets so sold and leased back after the date of consummation of such Asset Sale shall Closing Date does not be considered cash for purposes of this clause exceed $30,000,000; and
(b)); (cix) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under may sell notes or accounts receivables permitted by subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders7.11.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Holdings shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Holdings or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 ofother Foreign Subsidiary; provided that, in one transaction or the case of a series of transactions, to merger involving a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse the Capital Stock of which is required to assets or Persons for the payment or collection of be pledged hereunder, such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower Foreign Subsidiary shall be a the continuing or surviving entity in any such transactionPerson;
(iii) 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;
(iv) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(v) Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $1,500,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the sole consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a) or subsection 2.4D;
(fvi) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law; and
(viii) Any Person may be merged with or into any Subsidiary if the acquisition of the Capital Stock of such Person by such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and, if a Domestic Subsidiary, complies with the provisions of subsection 6.8 and (b) no Potential Event of Default or Event of Default shall not have occurred or be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenderscontinuing after giving effect thereto.
Appears in 1 contract
Samples: Credit Agreement (PRA International)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, either (x) all or any part substantially all of its business, property or assets assets, or (including its notes or receivables and y) the Capital Stock of a any Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any wholly-owned 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 a BorrowerCompany or any wholly-owned Subsidiary; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary of Company that is not a Borrower Person may be merged with or into Company or any other Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.2; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Borrower, Subsidiary and (c) no Potential Event of Default or Event of Default shall have occurred or be liquidatedcontinuing after giving effect thereto; and
(iii) except as set forth in paragraph (i) above, wound up Company (A) may or dissolved, or all or may cause 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, Subsidiary to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in sell the obligee or beneficiary Capital Stock of any Indebtedness or Contingent Obligation Subsidiary (other than the ObligationsCapital Stock of a Significant Subsidiary) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (bB) may cause any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligationsa Significant Subsidiary) to sell all or substantially all of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided, that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
(iv) Company and its Subsidiaries may make Asset Sales, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such Subsidiary’s assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Borrower or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case 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 (other than purchases or other acquisitions of Inventory, materials and equipment in the ordinary course of Borrower’s, or any of its Subsidiary’s, business) except:
(i) any Subsidiary of Borrower may be merged with or into a BorrowerBorrower 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 a BorrowerBorrower or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Borrower or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior surviving Person and (ii) in the case of such a liquidation, winding up or dissolution, all of the assets of such wholly-owned Subsidiary Guarantor are transferred to such transactionBorrower or a Subsidiary Guarantor that is wholly owned, directly or indirectly, by Borrower or as otherwise expressly permitted under this Agreement;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company Borrower and its Subsidiaries may make Asset Sales, provided, Sales to Persons who are not Affiliates of Borrower and its Subsidiaries of assets having a fair market value not in excess of $1,000,000 in 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; (b) not less than 90a minimum of 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); in Cash, and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D;
(v) in order to resolve disputes that occur in the extent ordinary course of business, Borrower and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Borrower or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required under subsection 2.4Aby applicable law;
(vii) Any Person may be merged with or into Borrower or any Subsidiaries if the acquisition of the Capital Stock of such Person by Borrower or such Subsidiary would have been permitted pursuant to subsections 7.3 and 7.8; and provided that (fa) in the event case of Borrower, Borrower shall be the continuing or surviving Person, (b) if a Subsidiary of Borrower is not the surviving or continuing Person, the surviving Person becomes a Subsidiary of Borrower and complies with the provisions of subsection 6.8 and 6.9 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto; and
(viii) Borrower may dissolve a Subsidiary that is not a Subsidiary Guarantor; provided that immediately thereafter, all of the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company proceeds thereof are received by Borrower and its Subsidiaries shall not be permitted in proportion to consummate their respective ownership interests in such Asset Sale without the prior written consent of Requisite LendersSubsidiary.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers ChipPAC shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company ChipPAC or any of its Subsidiaries, 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 (including by discount or compromise), in one transaction or a series of transactions, all or any part portion of its businessbusiness or assets, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise all or a substantial part of the business or assets of, or Capital Stock or other evidence of beneficial ownership of, any Person or any unit or division thereof, except:
(i) any Borrower Any Subsidiary of ChipPAC (other than Company) may be merged with or into a BorrowerChipPAC or any wholly owned 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 a BorrowerChipPAC or any wholly owned Subsidiary; providedprovided that, that no such transaction shall result in the obligee case of such a merger involving -------- ChipPAC, ChipPAC shall be the continuing or beneficiary surviving corporation and in the case of any Indebtedness other merger involving a Loan Party, a Loan Party shall be the continuing or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionsurviving corporation;
(aii) any Subsidiary of Company that is not a Borrower ChipPAC and its Subsidiaries may be merged with or into any acquire inventory, equipment and other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company ChipPAC 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; andthereof (determined in good faith by the board of directors of ChipPAC or its Subsidiaries, as the case may be);
(iv) Company ChipPAC and its Subsidiaries may make Asset SalesSales of assets having a fair market value (determined in good faith by the board of directors of ChipPAC or its Subsidiaries, providedas the case may be) not in excess of $15,000,000 (or $30,000,000 if, that after giving effect to such Asset Sale, the Leverage Ratio determined on a Pro Forma Basis is less than 3.50:1.00) for any Fiscal Year; provided that, in each such case, (ax) the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; thereof (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) determined in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may good faith by the relevant terms board of such Asset Sale be deferred more than six months after the date directors of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)ChipPAC); and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ey) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a);
(fv) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company ChipPAC and its Subsidiaries may acquire the stock or other equity Securities of any Person that, as a result of such acquisition, becomes a wholly 109 owned Subsidiary of ChipPAC or any of its Subsidiaries or is merged into ChipPAC or its Subsidiaries, or may acquire the business, property or assets of any Person; provided, that (x) on a Pro Forma Basis, ChipPAC -------- shall be in compliance with each of the covenants set forth in subsection 7.6, (y) no Default or Event of Default shall have occurred and be continuing or result therefrom and (z) after giving effect to such Acquisition, if the Leverage Ratio determined on a Pro Forma Basis shall exceed 2.75:1.00, then the aggregate consideration paid or assumed in respect of all Permitted Acquisitions under this Agreement shall not exceed the sum of $50,000,000 and the Excess Proceeds Amount;
(vi) ChipPAC or its Subsidiaries may create or, if permitted by clause (v) above, acquire new Subsidiaries; provided that, (a) promptly -------- after the formation or acquisition of each such Subsidiary, ChipPAC or such Subsidiary, as applicable, shall deliver or cause to be permitted delivered each of the items and execute each of the documents, if any, required pursuant to subsection 6.9; and
(vii) ChipPAC may consummate such Asset Sale without the prior written consent of Requisite LendersRecapitalization Transactions.
Appears in 1 contract
Samples: Credit Agreement (Chippac LTD)
Restriction on Fundamental Changes; Asset Sales. Holdings and Borrowers shall not, and shall not permit any of their respective Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Holdings, any Borrower or any Subsidiary of its Subsidiariesany Borrower (other than the filing of the Preferred Holdings Stock Certificate of Designations and the issuance of any Preferred Holdings Stock or Holdings Common Stock, in each case, in connection with the Mandatory Exchange Event), 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower (other than Company or Arris) may be merged with or into a Borrower, any other Borrower (including Company or Arris) 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 a Borrower; provided, that no such transaction shall result in the obligee any other Borrower (including Company or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionArris);
(aii) any Wholly-Owned Domestic Subsidiary of Company any Borrower that is not itself a Borrower may be merged with or into any Borrower or any other Wholly-Owned Domestic Subsidiary of Company any Borrower that is not itself a Borrower or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be 146 conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any Borrower or any other Wholly-Owned Domestic Subsidiary of any Borrower; provided, that in any merger involving a Borrower and a wholly-owned Domestic Subsidiary that is not a Borrower, the Borrower shall be the continuing or surviving Person;
(iii) any Wholly-Owned Foreign Subsidiary of any Borrower may be merged with or into any other Wholly-Owned Foreign Subsidiary of any Borrower 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 another any other Wholly-Owned Foreign Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiiv) Company Borrowers and its their Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset SalesSales (including, without limitation, the sale or other disposal of the Excluded Stock); provided, provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and;
(ivv) Company Borrowers and its their Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(vi) So long as no Event of Default or Potential Event of Default has occurred and is continuing, Borrowers and their Subsidiaries may make Asset Sales, Sales of assets (other than Inventory and Accounts) having a fair market value not in excess of $5,000,000 in any Fiscal Year and $15,000,000 in the aggregate for all such Asset Sales during the term of this Agreement; provided, that
(a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% at least seventy-five percent (75%) of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4A(iv)(b) or subsection 2.4C; provided, further, that no such Asset Sale may include the Capital Stock of Company or Arris;
(vii) Any Borrower or a Subsidiary of any Borrower may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(viii) Any Person may be merged with or into any Borrower if the acquisition of the Capital Stock of such Person by such Borrower or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that such Borrower shall be the continuing or surviving Person and (b) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(ix) Any Person may be merged with or into any Wholly-Owned Subsidiary of any Borrower if the acquisition of the Capital Stock of such Person by such Borrower or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) 137 147 the surviving Person after such merger is a Wholly-Owned Subsidiary of a Borrower, (b) the Borrowers have or have caused such Subsidiary to take all actions required by subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto; and
(x) So long as no Event of Default or Potential Event of Default has occurred and is continuing, Company may sell the Power Division; provided that (a) the Board of Directors or management of Company determine that the consideration received for such assets is at least equal to the extent required under subsection 2.4Afair market value thereof, (b) that at least fifty percent (50%) of the consideration received shall be cash; and (fc) concurrently with such sale Company shall have delivered to Administrative Agent (1) an Officer's Certificate (A) certifying that no Potential Event of Default or Event of Default shall then exist or shall occur as a result of such sale and (B) demonstrating that after giving effect to such sale, Company would have been in compliance with the event that financial covenants set forth in subsection 7.6, as of the Net Asset Sale Proceeds from any Asset Sale, when added last day of the four Fiscal Quarter period most recently ended prior to the aggregate Net Asset Sale Proceeds from all other Asset Sales date of such sale on a Pro Forma Basis and (2) a Borrowing Base Certificate detailing what the Borrowing Base will be immediately after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted giving effect to consummate such Asset Sale without the prior written consent of Requisite Lenderssale.
Appears in 1 contract
Samples: Credit Agreement (Arris Group Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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;
(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 make Asset Sales, provided, Sales of assets having a fair market value not in excess of $5,000,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; thereof and (b) not less than 90% of the sole consideration received shall be Cash or an Investment permitted by subsection 7.3;
(other than any consideration consisting v) Company may sublease or assign leases in the ordinary course of the assumption of liabilities related to such assetsbusiness;
(vi) in any such Asset Sale shall be cash (it being agreed order to resolve disputes that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries shall not be permitted may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable; and
(vii) Company or a Subsidiary of Company may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to consummate such Asset Sale without qualify members of the prior written consent Governing Body of Requisite Lendersthe Subsidiary if required by applicable law.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers shall notNo Loan Party will, and shall not nor will it permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(ia) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; provided, provided that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(ivc) Company and its Subsidiaries may dispose of obsolete, worn out, uneconomic or surplus property no longer used or useful in the ordinary course of business of Company;
(d) Company and its Subsidiaries may make Asset Sales, provided, ; provided that (aA) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (bB) not less than 90at least 85% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash Cash; (it being agreed that cash C) no Potential Event of Default or Event of Default shall have occurred or be continuing immediately after giving effect thereto; (D) the receipt of which may by the relevant terms Incurrence Ratio as of such Asset Sale be deferred more than six months date, calculated on a Pro Forma Basis after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of giving effect to such Asset Sale; , would be less than 3.00:1.00 and (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (eE) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to repay the extent required under subsection 2.4A; and (fLoans in accordance with Section 2.4(b)(iv)(B) in the event or Section 2.4(d), provided that the all such Net Asset Sale Proceeds from any Asset Sale, when added in a Fiscal Year may be applied or reinvested in accordance with Section 2.4(b)(iii)(A);
(e) in order to resolve disputes that occur in the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(f) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(g) Company may perform its obligations under the Conveyance of Undivided Mineral Interest;
(h) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to Section 6.3; provided that (i) in the case of Company, Company shall be the continuing or surviving Person, (ii) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of Section 5.9 and (iii) no Potential Event of Default or Event of Default shall have occurred or be continuing immediately after giving effect thereto;
(i) any Capital Stock of any Subsidiary of Company may be sold, transferred or otherwise disposed of to Company or any other wholly-owned Subsidiary of Company (provided that, in the case of any such transfer by a Loan Party, the transferee must also be a Loan Party or constitute an Investment otherwise permitted hereunder);
(j) the cross licensing or licensing of intellectual property, in the ordinary course of business;
(k) the leasing, occupancy or sub-leasing of Real Property Assets in the ordinary course of business that would not materially interfere with the required use of such Real Property Asset by any Loan Party;
(l) transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to consummate the respective Government Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such Asset Sale without the prior written consent property as part of Requisite Lendersan insurance settlement;
(m) Liens expressly permitted by Section 6.2;
(n) Restricted Junior Payments expressly permitted by Section 6.5; and
(o) Investments permitted by Section 6.3.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a any Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any wholly-owned 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 a BorrowerCompany or any wholly-owned Subsidiary; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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;
(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 make Asset Sales, provided, Sales of assets (other than the Capital Stock or all or any material portion of any of Standard Insurance Company or StanCorp Mortgage Investors LLC) having a fair market value in an aggregate amount not to exceed 10% of Consolidated Net Worth;
(v) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law; and
(vi) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.2; provided that (a) in the consideration received for such assets case of Company, Company shall be in an amount at least equal to the fair market value thereof; continuing or surviving Person, (b) if a Subsidiary is not less than 90% of the consideration received (other than any consideration consisting of surviving or continuing Person, the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); surviving Person becomes a Subsidiary and (c) not more than 10% no Potential Event of the cash consideration received by Company and its Subsidiaries in any such Asset Sale Default or Event of Default shall have occurred or be received continuing after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersgiving effect thereto.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the change its legal form of organization of Company or any of its Subsidiariesform, or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), make any Asset Sale or otherwise convey, sell, lease or lease, sub-lease (as lessor or sublessor)lease, transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case 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, except:
(i) any Subsidiary of Borrower may be merged with or into a Borrower or any other Subsidiary of Borrower, or be liquidated, wound up or dissolved, or all or 105 any substantial 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 a Borrower; provided, that no such transaction shall result in the obligee Borrower or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not Borrower; provided that, in the case of such a merger with Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a the continuing or surviving entity in any such transactioncorporation;
(ii) Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company subject to subsection 7.13, Borrower 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;
(iv) Company Borrower and its Subsidiaries may make Asset Sales, provided, Sales of (A) assets having a fair market value not in excess of $5,000,000 in the aggregate during any Fiscal Year; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; thereof and (by) not less than 90at least 75% of the total consideration received (other than any consideration consisting of shall be Cash or Cash Equivalents or the assumption of liabilities related Indebtedness of the Borrower or such Subsidiary or other obligations relating to such assetsassets and release from all liability on the Indebtedness or other obligations assumed and (B) in for the fair market value thereof, all or substantially all of the assets or stock of any such Asset Sale shall be cash (it being agreed that cash Subsidiary of the receipt Borrower which is or has been a Subsidiary of the Borrower prior to the date hereof, the revenues of which may by are derived primarily from the relevant terms direct retail sale of such Asset Sale be deferred more than six months after apparel; provided further that the date proceeds of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of all such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A2.4A(iii)(a); and and
(fv) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company Borrower and its Operating Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent may make an Acquisition if: (A) no Event of Requisite Lenders.Default or Potential Event of Default has occurred and is continuing, or would result therefrom;
Appears in 1 contract
Samples: Credit Agreement (Hartmarx Corp/De)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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), license, transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryassets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary of Company that is not a Borrower Subsidiary Guarantor may be merged with or into any other Subsidiary of Company that is not a BorrowerSubsidiary 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 another any Subsidiary of Company that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionGuarantor;
(iii) an Asset Sale identified on Schedule 7.7;
(iv) assignments and licenses of Intellectual Property of Company or any Subsidiary between or among Company and its Subsidiaries, and licenses (a) to Joint Ventures or (b) in the ordinary course of business;
(v) leases of owned real property and subleases of leased real property, in each case, not used in the operations of Company and its Subsidiaries;
(vi) 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 (other than assets described in clause (iii)(c) of the definition of Asset Sale) shall be in an amount at least equal to the fair market value thereof; andthereof (as determined in good faith by Company);
(ivvii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(viii) Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having a net book value on Company’s books and records not in excess of $20,000,000 in 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 thereofthereof (as determined in good faith by Company); (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; and (c) not more than 10% no Potential Event of the cash consideration received by Company and its Subsidiaries in any such Asset Sale Default or Event of Default shall have occurred or be received continuing after the date of consummation of such Asset Sale; giving effect thereto;
(d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (fix) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries shall not be may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(x) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(xi) Any transaction permitted pursuant to consummate subsection 7.3 or 7.10;
(xii) Company and its Subsidiaries may sell or otherwise dispose of Cash Equivalents for fair value; and
(xiii) Company and its Subsidiaries may sell or otherwise dispose of specific items of equipment so long as the purpose of such Asset Sale without sale or disposition is to acquire replacement items of like-kind equipment or other equipment used or useful in the prior written consent conduct of Requisite Lendersthe business of Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Hexcel Corp /De/)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedPROVIDED that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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; andthereof determined in good faith by Company's Governing Body;
(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 make Asset Sales, provided, ; PROVIDED that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not no less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale thereof shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))paid in cash; (c) not more than 10% no Event of the cash consideration received by Company Default shall have occurred and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Salecontinuing; and (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4A(iii)(a) or subsection 2.4C;
(fv) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries, in order to qualify members of the Governing Body of the Subsidiary if required by applicable law; and
(vii) Any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; PROVIDED that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenderscontinuing after giving affect thereby.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Each of Parent and Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Parent or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (x) any Subsidiary of Borrower may be merged with or into Borrower 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 Borrower or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving Person, (y) any Foreign Subsidiary of Borrower may be merged with or into any other Foreign Subsidiary of Borrower, 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 Foreign Subsidiary of Borrower and (z)
(1) Borrower and any Subsidiary of Borrower may convert from a Borrower; providedcorporation to a limited liability company (or, that no such transaction shall result in the obligee or beneficiary respect of any Indebtedness Canadian Subsidiary, an unlimited liability company), or Contingent Obligation vice versa, and (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a2) any Subsidiary of Company that is not a Borrower may be merged with change its jurisdiction of incorporation or into any other Subsidiary of Company that is not a Borrower, 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 offormation, in one transaction or either case so long as (a) if any such Subsidiary was a series of transactions, to another Domestic Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior before giving effect to such transaction; and conversion or change, it will continue to be a Domestic Subsidiary after giving effect to such conversion or change, (b) if any Immaterial Foreign such Subsidiary was a Subsidiary Guarantor before giving effect to such conversion or change, it will continue to be a Subsidiary Guarantor after giving effect to such conversion or change, (c) in the case of the conversion of Borrower from a corporation to a limited liability company, Borrower shall provide in its limited liability company constituent documents that its membership interests shall constitute “Securities” within the meaning of Article 8 of the Delaware UCC and one or more certificates representing all such membership interests shall be pledged by Parent to Administrative Agent, for the benefit of Lenders, promptly following such conversion of Borrower, (d) if the Capital Stock of such Subsidiary was pledged to Administrative Agent (or to any Supplemental Collateral Agent), for the benefit of Lenders, before giving effect to such conversion or change, it will continue to be (or will immediately become) pledged to Administrative Agent (or to a Supplemental Collateral Agent), for the benefit of Lenders, after giving effect to such conversion or change, (e) Borrower shall deliver a written notice under subsection 6.1(xv) with respect to such Subsidiary as though such Subsidiary had become a Subsidiary of Parent or Borrower as a result of such conversion or change (it being understood that such written notice shall be deemed to supplement Schedule 5.1 annexed hereto for all purposes of this Agreement), and (f) Borrower shall, and shall cause the other Loan Parties to, give notice of such conversion or change in accordance with the Security Agreement, deliver updated schedules to the Security Agreement, take such other actions as may be merged with or into any Borrowerrequired under the Security Agreement, or this Agreement, and the other Loan Documents, and take such further actions (including, without limitation, actions similar to those contemplated by subsections 6.8 and 6.9 of this Agreement) as may be liquidatednecessary or, wound up or dissolvedin the opinion of Administrative Agent, or desirable in order to continue and maintain the existence, attachment, perfection, and priority of all Liens in favor of Administrative Agent (or any part Supplemental Collateral Agent), for the benefit of its businessLenders, property on the Capital Stock or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior as in effect before giving effect to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionconversion or change;
(iiiii) Company Borrower 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;
(iii) Notwithstanding clause (ii) above, Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company Borrower and its Subsidiaries may make (A) the Concrete Construction Asset Sales, provided, Sale and (B) Asset Sales (other than the Concrete Construction Asset Sale) of assets having a fair market value not in excess of $20,000,000 in any Fiscal Year and $40,000,000 in the aggregate for all such Asset Sales since the Original Closing Date; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) the sole consideration received shall consist of not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D;
(v) in order to resolve disputes that occur in the extent ordinary course of business, Borrower and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Borrower or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required under by applicable law; and
(vii) Any Person may substantially simultaneously be merged or consolidated with or into Borrower or any Subsidiary if the acquisition of the Capital Stock of such Person by Borrower or such Subsidiary would have been permitted pursuant to subsection 2.4A7.3; and provided that (fa) in the event that case of Borrower, Borrower shall be the Net Asset Sale Proceeds from any Asset Salecontinuing or surviving Person, when added to (b) if a Subsidiary is not the aggregate Net Asset Sale Proceeds from all other Asset Sales surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersgiving effect thereto.
Appears in 1 contract
Samples: Amendment Agreement (Brand Energy & Infrastructure Services, Inc)
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or and their Subsidiaries to 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company (other than a Domestic Borrower) may be merged or amalgamated with or into a Company, any Domestic Borrower, any Subsidiary Guarantor or Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee case of such a merger, Company, such Domestic Borrower, such Subsidiary Guarantor or beneficiary such Offshore Guarantor shall be the continuing or surviving Person;
(ii) Company and its Subsidiaries may sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) United Glass may sell certain notes held by it issued by Ardagh Glass Limited ("Ardagh") to Ardagh or an affiliate thereof;
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $500,000,000 for each 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 (b) for the period from the Restatement Date until the date of determination Company and its Subsidiaries may not make aggregate Asset Sales under this clause (v) of assets having an aggregate value of more than $1,000,000,000; provided that Asset Sales made by Avir and its Subsidiaries after the Restatement Date shall not exceed $100,000,000.
(vi) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Subsidiaries may sell accounts receivable to the extent that the proceeds of Receivables Sale Indebtedness are applied as required by subsection 2.4B(ii)(f);
(vii) Company and its Subsidiaries may make Acquisitions and Investments permitted by subsection 6.3;
(viii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any Indebtedness or Contingent Obligation of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(ix) Any Person (other than Holdings or a Domestic Borrower) may be merged or amalgamated with or into Company or any Subsidiary if the Obligations) having greater recourse to assets or Persons for acquisition of the payment or collection Capital Stock of such Indebtedness Person by Company or Contingent Obligation than such obligee or beneficiary had immediately prior Subsidiary would not be prohibited pursuant to such transaction;
subsection 6.3; provided that (a) any in the case of Company or a Domestic Borrower, Company or such Domestic Borrower shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsections 5.9 and 5.10 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto; and
(x) Any Subsidiary of Company that is not (other than a Borrower Borrower) may be merged with or into any other Subsidiary of Company that is not (other than a Borrower, ) or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, transactions to another any other Subsidiary that is not of Company (other than a Borrower), so long as, at the time of such event, neither Subsidiary is a Subsidiary Guarantor or an Offshore Guarantor, provided, that that, notwithstanding any of the foregoing clauses or anything else in this Agreement to the contrary, (i) no such transaction shall result in the obligee or beneficiary of Domestic Borrower may issue any Indebtedness or Contingent Obligation (new Capital Stock to any Person other than the Obligations) having greater recourse to assets Company or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; Packaging, and (bii) any Immaterial Foreign Subsidiary neither Company nor Packaging may be merged with or into any Borrowerconvey, or be liquidatedsell, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company and its Subsidiaries may sell transfer or otherwise dispose of assets any Capital Stock in transactions that do not constitute Asset Sales; providedany Domestic Borrower, that other than the consideration received for such assets shall be in an amount at least equal security interest therein pledged to Collateral Agent pursuant to the fair market value thereof; and
(iv) Company and its Subsidiaries may make Asset Sales, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersPledge Agreement.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers The Parent and the Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of the Parent, the Company or any of its Subsidiaries, create any new Subsidiaries or enter into any transaction of merger or consolidationconsolidation (other than the ENR Merger), 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 (including by discount or compromise), in one transaction or a series of transactions, all or any part of its businessbusiness or assets, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or (other than pursuant to the ENR Merger, the ENR Transfer, the Shares Acquisition and the Debt Tender Offer) acquire by purchase or otherwise all or a substantial part of the business or assets of, or Capital Stock or other evidence of beneficial ownership of, any Person or any unit or division thereof, except:
(i) any Borrower Any Subsidiary of the Company may be merged with or into a Borrowerthe Company or any wholly-owned Subsidiary of its Related Subsidiary Group, 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 a Borrowerthe Company or any wholly-owned Subsidiary of its Related Subsidiary Group; providedprovided that, that no such transaction shall result in the obligee case of such a merger involving the Company, the Company shall be the continuing or beneficiary surviving corporation, in the case of any Indebtedness such merger involving a Domestic Subsidiary (but not the Company), a Domestic Subsidiary shall be the continuing or Contingent Obligation (surviving corporation and in the case of any other than such merger involving a Subsidiary Guarantor, a wholly-owned Subsidiary Guarantor shall be the Obligations) having greater recourse to assets continuing or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;surviving corporation; 115
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction[RESERVED];
(iii) The Company and its Subsidiaries may acquire inventory, equipment and other assets in the ordinary course of business;
(iv) The Company and its Subsidiaries may grant Liens permitted pursuant to subsection 7.2A and 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; andthereof (determined in good faith by the board of directors of the Company) and no less than 80% thereof shall be paid in cash;
(ivv) The Company and its Subsidiaries may make (a) Permitted Testing Center Asset Sales, provided(b) Asset Sales of assets described in Schedule 7.7 annexed hereto in an aggregate amount not to exceed $5,000,000 for all such sales, that and (ac) other Asset Sales of assets having a fair market value (determined in good faith by the board of directors of the Company) not in excess of $10,000,000 in the aggregate measured on a cumulative basis from the Closing Date; provided that, in each such case, (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (determined in good faith by the board of directors of the Company); (by) not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale therefor shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a);
(vi) The Company and its Subsidiaries may make Asset Sales to any Governmental Authority to the extent required under subsection 2.4Aby any State Contract as in effect pursuant to this Agreement; and (f) in the event provided that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other proceeds of such Asset Sales after the Closing Date, would exceed $10,000,000, shall be applied to prepay Term Loans pursuant to subsection 2.4B(iii)(a);
(vii) The Company and its Subsidiaries may (a) enter into sale and lease-back transactions permitted by subsection 7.8, (b) enter into Permitted Acquisitions and (c) make Investments permitted by subsection 7.3(ix); and
(viii) The Company may create new Subsidiaries; provided that, (a) concurrently with or prior to the formation of each such Subsidiary, the Company or such Subsidiary, as applicable, shall deliver or cause to be delivered each of the items and execute each of the documents, if any, required pursuant to subsection 6.9, and (b) each newly formed Domestic Subsidiary shall be a wholly-owned Subsidiary of the Company. At any time prior to the consummation of the ENR Merger, the Company and its Subsidiaries may make Asset Sales in respect of Margin Stock; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the Company); (y) not less than 100% of the consideration received therefor shall be permitted to consummate Cash and cash and cash equivalents; and (z) the proceeds of such Asset Sale without the prior written consent of Requisite LendersSales shall be applied to repay Term Loans pursuant to subsection 2.4B(iii)(a).
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or and their Subsidiaries to 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Subsidiary of Company (other than a Domestic Borrower or ACI) may be merged or amalgamated with or into a Company, any Borrower, any Subsidiary Guarantor or any Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor; provided that, in the case of such a merger, Company, such Borrower, such Subsidiary Guarantor or such Offshore Guarantor shall be the continuing or surviving Person;
(ii) Company and its Subsidiaries may sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(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 the BSN Acquisition in accordance with the BSN Share Purchase Agreement;
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $500,000,000 for any twelve-month period provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and (b) for the period from the First Restatement Date until the date of determination Company and its Subsidiaries may not make aggregate Asset Sales under this clause (v) of assets having an aggregate value of more than $1,000,000,000; provided that Asset Sales made by Avir and its Subsidiaries after the First Restatement Date shall not exceed $100,000,000; provided, further, that, from and after the Second Restatement Date through the earlier to occur of (i) the BSN Acquisition Closing Date and (ii) the termination of all Domestic Tranche C Term Loan Commitments and all Tranche D Term Loan Commitments without the BSN Acquisition having been consummated, Company and its Subsidiaries may not make Asset Sales under this clause (v) of assets having an aggregate value in excess of $175,000,000;
(vi) in order to resolve disputes that no such transaction shall result occur in the obligee ordinary course of business, Company and its Subsidiaries may discount or beneficiary otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Subsidiaries may sell accounts receivable to the extent that the proceeds of Receivables Sale Indebtedness are applied as required by subsection 2.4B(ii)(f);
(vii) Company and its Subsidiaries may make Acquisitions and Investments permitted by subsection 6.3;
(viii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any Indebtedness or Contingent Obligation of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(ix) Any Person (other than Holdings or a Domestic Borrower) may be merged or amalgamated with or into Company or any Subsidiary if the Obligations) having greater recourse to assets or Persons for acquisition of the payment or collection Capital Stock of such Indebtedness Person by Company or Contingent Obligation than such obligee or beneficiary had immediately prior Subsidiary would not be prohibited pursuant to such transaction;
subsection 6.3; provided that (a) any in the case of Company or a Domestic Borrower, Company or such Domestic Borrower shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsections 5.9 and 5.10 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto; and
(x) Any Subsidiary of Company that is not (other than a Borrower Borrower) may be merged with or into any other Subsidiary of Company that is not (other than a Borrower, ) or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, transactions to another any other Subsidiary that is not of Company (other than a Borrower), so long as, at the time of such event, neither Subsidiary is a Subsidiary Guarantor or an Offshore Guarantor, provided, that that, notwithstanding any of the foregoing clauses or anything else in this Agreement to the contrary, (i) no such transaction shall result in the obligee or beneficiary of Domestic Borrower may issue any Indebtedness or Contingent Obligation (new Capital Stock to any Person other than the Obligations) having greater recourse to assets Company or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; Packaging, and (bii) any Immaterial Foreign Subsidiary neither Company nor Packaging may be merged with or into any Borrowerconvey, or be liquidatedsell, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company and its Subsidiaries may sell transfer or otherwise dispose of assets any Capital Stock in transactions that do not constitute Asset Sales; providedany Domestic Borrower, that other than the consideration received for such assets shall be in an amount at least equal security interest therein pledged to Collateral Agent pursuant to the fair market value thereof; and
(iv) Company and its Subsidiaries may make Asset Sales, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersPledge Agreement.
Appears in 1 contract
Samples: Secured Credit Agreement (Owens Illinois Group Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock Equity Interests of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged or consolidated with or into a BorrowerCompany 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, sub-leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower; provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Company or any wholly-owned Subsidiary that is not a BorrowerGuarantor; provided that, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign wholly-owned Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower Guarantor shall be a the continuing or surviving entity in any such transactionPerson;
(iiiii) Company and its Subsidiaries may sell convey, sell, transfer 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;
(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 make Asset Sales of assets having a fair market value not in excess of $35,000,000, in the case of Asset Sales of the Facilities set forth on Schedule 7.7, and $20,000,000, in the case of all other Asset Sales, provided, in each case in 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; (b) not less than 9075% of the consideration received (other than shall be Cash or Cash Equivalents, provided, however, that in the case of any consideration consisting Asset Sale to a domestic Joint Venture permitted pursuant to subsection 7.3A(xi), the amount of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration Investment therein received or retained by Company and its Subsidiaries in any consideration of such Asset Sale shall be received treated as Cash solely for purposes of satisfying this requirement; (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after the date of consummation of such Asset Salegiving effect thereto; and (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a) or subsection 2.4D;
(fv) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Equity Interests of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Equity Interests of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3A; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be permitted continuing after giving effect thereto; and
(viii) Company or any Subsidiary may sell or dispose of all or any portion of the assets, or the Equity Interests of the Subsidiaries that own the assets, related to consummate the pharmacy or therapy business of Company and its Subsidiaries; provided that the proceeds of such Asset Sale without the prior written consent of Requisite Lendersasset sales are applied as required pursuant to subsection 2.4B(iii).
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a any Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any Wholly-Owned 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 a BorrowerCompany or any Wholly-Owned Subsidiary; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Wholly-Owned Subsidiary shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary Company and its Subsidiaries may make sales, assignments, transfers and dispositions of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result accounts in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons business for the payment or collection purposes of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactioncollection;
(iii) Company and its Subsidiaries may sell or otherwise dispose of assets obsolete, worn out or surplus property 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; andordinary course of business;
(iv) Company and its Subsidiaries may make Asset SalesSales in any Fiscal Year of assets having a fair market value in an aggregate amount for such Fiscal Year not to exceed 10% of Consolidated Net Worth, provided, as determined as of the date of such Asset Sale;
(v) Company and its Subsidiaries may sell or dispose of shares of Capital Stock of any of Company's Subsidiaries in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(vi) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the consideration received for such assets case of Company, Company shall be in an amount at least equal to the fair market value thereof; continuing or surviving Person, (b) if a Subsidiary is not less than 90% of the consideration received (other than any consideration consisting of surviving or continuing Person, the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); surviving Person becomes a Subsidiary and (c) not more than 10% no Potential Event of the cash consideration received by Default or Event of Default shall have occurred or be continuing after giving effect thereto; and
(vii) Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) may license, sublicense or otherwise transfer Intellectual Property in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent ordinary course of Requisite Lendersbusiness in accordance with past practices.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Each of Parent and Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Parent or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (x) any Subsidiary of Borrower may be merged with or into Borrower 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 Borrower or any wholly-owned Subsidiary Guarantor; provided that, in the case of such a merger, Borrower or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving Person and (y) any Foreign Subsidiary of Borrower may be merged with or into any other Foreign Subsidiary of Borrower, 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 a any Foreign Subsidiary of Borrower; provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company Borrower and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $10,000,000 in any Fiscal Year and $25,000,000 in the aggregate for all such Asset Sales during the term of this Agreement; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) the sole consideration received shall consist of not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D;
(v) in order to resolve disputes that occur in the extent ordinary course of business, Borrower and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Borrower or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required under by applicable law; and
(vii) Any Person may substantially simultaneously be merged or consolidated with or into Borrower or any Subsidiary if the acquisition of the Capital Stock of such Person by Borrower or such Subsidiary would have been permitted pursuant to subsection 2.4A7.3; and provided that (fa) in the event that case of Borrower, Borrower shall be the Net Asset Sale Proceeds from any Asset Salecontinuing or surviving Person, when added to (b) if a Subsidiary is not the aggregate Net Asset Sale Proceeds from all other Asset Sales surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersgiving effect thereto.
Appears in 1 contract
Samples: Credit Agreement (Brand Services)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a SubsidiarySubsidiary of Company, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; providedTable of Contents
(iii) Company and its Subsidiaries may dispose of obsolete, that worn out or surplus property in the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; andordinary course of business;
(iv) Company and its Subsidiaries may make Asset SalesSales of assets having a fair market value not in excess of $50,000,000 during any Fiscal Year (less the aggregate amount of the Net Asset Sale Proceeds thereof in respect of which Company has delivered an Officer’s Certificate pursuant to subsection 2.4B(iii)(a) setting forth its intent to reinvest such Net Asset Sale Proceeds within 365 days of such sale or other disposition); provided that the amount for any Fiscal Year shall be increased by an amount equal to the excess, if any, of such amount for the previous Fiscal Year (without giving effect to any adjustment in accordance with this proviso) over the actual amount of sales and other dispositions during such previous Fiscal Year; provided, however, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the any non-Cash consideration received (other than any consideration consisting of the assumption of liabilities related to for such assets) in any such Asset Sale assets shall be cash (it being agreed that cash consistent with past practice and the receipt ordinary course of which may by the relevant terms business of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Company and its Subsidiaries; (c) not more than 10% no Potential Event of the cash consideration received by Company Default or Event of Default shall have occurred or be continuing after giving effect thereto; and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to required by subsection 2.4B(iii)(a) or subsection 2.4D; provided, however, that the extent required under subsection 2.4A; restrictions set forth in clauses (a), (b) and (fc) above shall not apply if, at the time Company or such Subsidiary makes such Asset Sale and after giving pro forma effect thereto, the Company Debt Rating shall be at least Ba1 from Xxxxx’x and at least BB+ from S&P;
(v) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company and its Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of any such Subsidiary if required by applicable law;
(vii) the Acquisition and the Merger may occur in accordance with the terms and conditions of the Merger Agreement;
(viii) any Person may be merged with or into any Subsidiary of Company if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that if a Subsidiary of Company is not the surviving or continuing Person, the surviving Person becomes a Subsidiary of Company and complies with the provisions of subsection 6.7 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(ix) licenses or sublicenses by Company and its Subsidiaries of software, trademarks, patents and other intellectual property in the ordinary course of business and which do not be materially interfere with the business of Company or any of its Subsidiaries; Table of Contents
(x) transfers of condemned property to the respective governmental authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement;
(xi) Company and its Subsidiaries may sell or otherwise dispose of Cash Equivalents permitted to consummate be made or owned pursuant to subsection 7.3(i);
(xii) Company and its Subsidiaries may discontinue any operation (including the dissolution of any of its Subsidiaries) in accordance with subsection 6.2;
(xiii) Company and its Subsidiaries may sell and leaseback any property within 180 days of the acquisition of such Asset Sale without the prior written consent property;
(xiv) any Subsidiary (other than a Subsidiary Guarantor or a Dormant Subsidiary) may transfer assets to any other Subsidiary (other than a Subsidiary Guarantor or a Dormant Subsidiary); and
(xv) any Foreign Subsidiary of Requisite LendersCompany may be merged with or into any other Foreign Subsidiary of Company.
Appears in 1 contract
Samples: Credit Agreement (Urs Corp /New/)
Restriction on Fundamental Changes; Asset Sales. Borrowers Holdings and Company shall not, and shall not permit any of their respective Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Holdings or any of its Subsidiaries, create any new Subsidiaries or enter into any transaction of merger or consolidation, or liquidate, wind-up windup 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise any part of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except:
(i) Company may make the Acquisition on the Closing Date;
(ii) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any wholly owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any substantial 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 a BorrowerCompany or any wholly owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any wholly owned Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower Guarantor shall be a the continuing or surviving entity in any such transactioncorporation;
(iii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.6D;
(iv) Company and its Subsidiaries may acquire inventory, equipment and other assets in the ordinary course of business;
(v) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided, provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; andthereof (determined in good faith by the board of directors of Company);
(ivvi) Company and its Subsidiaries may make any Asset SalesSale of assets that have, providedin the aggregate, a fair market value (determined in good faith by the board of directors of Company) not in excess of 10% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior to such Asset Sale; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (determined in good faith by the board of directors of Company); (by) not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a); and
(vii) At any time and from time to time after Company shall have refinanced all outstanding Indebtedness under the extent required Subordinated Bridge Loan Documents and under the Subordinated Exchange Note Documents with the proceeds of Indebtedness permitted under subsection 2.4A; 7.1(vi), Company or any Subsidiary of Company may make acquisitions of assets and businesses (fincluding acquisitions of the capital stock or other equity interests of another Person), provided that:
(a) in the event that the Net Asset Sale Proceeds from immediately prior to and after giving effect to any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000such acquisition, Company and its Subsidiaries shall be in compliance with the provisions of subsection 7.11 hereof;
(b) after giving effect to any such acquisition, the sum of (x) the amount of cash on hand of Company plus (y) the amount by which the Revolving Loan Commitments exceed the Total Utilization of Revolving Loan Commitments, shall equal or exceed $7,500,000;
(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, (2) if any such acquisition is made prior to the first Anniversary, the Leverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall not be permitted greater than the ratio set forth in subsection 7.6B applicable at the time of such acquisition minus 0.25, (3) Consolidated EBITDA attributable to consummate any assets so acquired, as projected by Company for the twelve-month period immediately following the date of such Asset Sale without acquisition, shall not exceed 25% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior written consent to the date of Requisite Lenderssuch acquisition, and (4) 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;
(d) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of the Administrative Agent on behalf of Lenders pursuant to the Collateral Documents; and
(e) each such acquisition shall be made on a fully consensual basis between Company and its Subsidiaries, on the one hand, and the seller or sellers of such assets or such business, on the other hand.
Appears in 1 contract
Samples: Credit Agreement (MBW Foods Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization sell or otherwise transfer a Subsidiary of Company to Libbey or any one of its SubsidiariesSubsidiaries unless such Subsidiary remains a Subsidiary of Company, 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case 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, except:
(i) any Borrower Subsidiary of Company may be merged or consolidated with or into a BorrowerCompany or any wholly-owned 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 a BorrowerCompany or any wholly-owned Subsidiary of Company; providedPROVIDED that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger or Contingent Obligation than such obligee consolidation, Company or beneficiary had immediately prior to such transactiona wholly-owned Subsidiary of Company shall be the continuing or surviving corporation;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrowersubject to subsection 6.10, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iviii) Company and its Subsidiaries may make Asset Sales, provided, ; PROVIDED that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (by) not less than 90% of the sole consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash or non-cash consideration which constitutes Investments permitted under subsection 6.3(vi), (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause ix) or (b)xv); and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A2.4A(iii)(a); and and
(fiv) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries may acquire stock or assets of another Person or create additional Subsidiaries; PROVIDED that in respect of all such acquisitions other than the acquisition of a business known as "WorldCrisa" and the Investments to be made in Vitrocrisa S.A. DE C.V., Crisa Corporation, Vitrocrisa Holding S.A. DE C.V. and any affiliated entities therewith, (A) the Total Leverage 92 100 Ratio (calculated on a pro forma basis and, if a Person which will be a Subsidiary of Company is being acquired, considering such Person to be a Subsidiary of Company in the calculation of Consolidated Total Debt and of Consolidated Adjusted EBITDA, or if a Person is being acquired pursuant to a Joint Venture, taking into effect the dividends or other distributions to be paid to the Company or its Subsidiaries in the calculation of Consolidated Adjusted EBITDA) shall not be permitted in compliance with the requirement of subsection 6.6A and (B) in the case of an acquisition of stock, the acquired Person will be a Subsidiary of Company or a Joint Venture to consummate such Asset Sale without the prior written consent which Company or any of Requisite Lendersits Subsidiaries is a party.
Appears in 1 contract
Samples: Credit Agreement (Libbey Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of its Subsidiaries, create any new 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise any part of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any domestic Wholly Owned Subsidiary of Company, or be liquidated, wound up or dissolved, or all or any substantial 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 a BorrowerCompany or any domestic Wholly Owned Subsidiary of Company; providedprovided that, that no such transaction shall result in the obligee case of such a merger, Company or beneficiary of any Indebtedness such Wholly Owned Subsidiary shall be the continuing or Contingent Obligation surviving corporation;
(ii) Company and its Subsidiaries may acquire inventory (other than the Obligations) having greater recourse to receivables portfolios), equipment and other assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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; andthereof (determined in good faith by the board of directors of Company);
(iv) Company and its Subsidiaries may make any Asset SalesSale of assets that have, providedin the aggregate, a fair market value (determined in good faith by the board of directors of Company) not in excess of 20% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior to such Asset Sale; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (determined in good faith by the board of directors of Company); (by) not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale therefor shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to required by subsection 2.4B(iii)(a);
(v) Company may make acquisitions of receivables portfolios and other assets and businesses (including acquisitions of the extent required under subsection 2.4A; and capital stock of another Person), provided that:
(fa) in the event that the Net Asset Sale Proceeds from aggregate amount of all such acquisitions in any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, Fiscal Year would exceed $10,000,0005,000,000 after giving effect to any such proposed acquisition, Company and its Subsidiaries (x) the Interest Coverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall not be permitted less than the ratio set forth in subsection 7.6A applicable at the time of such acquisition and (y) the Leverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall not be greater than the ratio set forth in subsection 7.6B applicable at the time of such acquisition;
(b) the aggregate amount expended for Permitted Acquisitions (other than pursuant to subsection 7.7(vi)) after the Effective Date shall not exceed $60,000,000;
(c) any receivables portfolio acquired shall be a Qualified Loan Portfolio;
(d) the aggregate amount expended for Permitted Portfolio Acquisitions during any Fiscal Year together with the aggregate amount of all Investments made pursuant to subsection 7.3(v)(c) during such Fiscal Year shall not exceed $60,000,000;
(e) that portion of Consolidated EBITDA attributable to any assets so acquired in any single acquisition or series of related acquisitions, as projected by Company for the twelve-month period immediately following the date of such acquisition or the date of the first of such series of related acquisitions, as the case may be, shall not exceed 20% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior to the date of such acquisition, and Company shall have delivered an Officer's Certificate to Co-Administrative Agents (together with supporting information therefor) to the foregoing effect; and
(f) 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
(vi) Company may consummate such Asset Sale without the Tender Offer on the Effective Date and the Union Merger on the Delayed-Draw Term Loan Funding Date. Notwithstanding the foregoing, prior written consent to the Union Merger Date, Merger Sub may directly or indirectly sell, assign, pledge or encumber any shares of Requisite LendersUnion Common Stock owned by it for cash and for fair market value so long as the proceeds thereof are held as Cash or Cash Equivalents.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or (a) any of its Subsidiaries, or and their Material Subsidiaries to enter into any transaction of merger merger, amalgamation or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or (b) any of its and their Restricted Subsidiaries to convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (x) any Borrower Restricted Subsidiary of Company (other than a Borrower) may be merged or amalgamated with or into a Company, any Borrower, any Subsidiary Guarantor or any Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor; provided that, in the case of such a merger or amalgamation, Company, such Borrower, such Subsidiary Guarantor or such Offshore Guarantor shall be the continuing or surviving Person and (y) a Borrower (other than Oxxxx-Xxxxxxxx) may merge with and into any other Borrower incorporated or otherwise organized in the same jurisdiction as the Borrower with or into which such Borrower is merging if (a) the aggregate amount of outstanding Loans of the surviving Borrower will not exceed such Borrower’s Multicurrency Revolving Sublimit and (b) Administrative Agent determines that such merger would not be materially adverse to the interests of the Lenders;
(ii) Company and its Restricted Subsidiaries may sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out, uneconomical, unmerchantable, unsaleable or surplus property in the ordinary course of business;
(iv) Company and its Restricted Subsidiaries may make Asset Sales of assets having an aggregate book value (at the time of disposition) not in excess of 15% of Consolidated Tangible Assets in 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 (b) the Net Proceeds arising from such Asset Sales shall be applied as required under Section 4.4(c); provided, however, to the extent that no such transaction shall result the Net Proceeds of any Asset Sale that are not required to be used to prepay the Loans pursuant to Section 4.4(c) are reinvested in the obligee manner and in the time periods prescribed in Section 4.4(c), and if Company or beneficiary such Restricted Subsidiary has complied (to the extent applicable) with the provisions of Section 7.9 with respect to any assets purchased with such reinvested proceeds, such Asset Sale shall be disregarded for purposes of calculations pursuant to this Section 8.7(iv) (and shall otherwise be deemed to be permitted under this Section 8.7(iv)) to the extent of the reinvested proceeds, from and after the time of compliance with Section 7.9 with respect to the acquisition of such other property;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Restricted Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Restricted Subsidiaries may sell accounts receivable in connection with Receivables Sale Indebtedness permitted under Section 8.1(xiv);
(vi) Company and its Restricted Subsidiaries may make Acquisitions and Investments permitted by Section 8.3;
(vii) Company or a Restricted Subsidiary may sell or dispose of shares of Capital Stock of any Indebtedness or Contingent Obligation of its Restricted Subsidiaries in order to qualify members of the Governing Body of the Restricted Subsidiary if required by applicable law;
(viii) any Person (other than Holdings or a Borrower) may be merged or amalgamated with or into Company or any Restricted Subsidiary if the Obligations) having greater recourse to assets or Persons for acquisition of the payment or collection Capital Stock of such Indebtedness Person by Company or Contingent Obligation than such obligee Restricted Subsidiary would not be prohibited pursuant to Section 8.3; provided that (a) in the case of Company or beneficiary had immediately prior to a Borrower, Company or such transactionBorrower shall be the continuing or surviving Person, (b) if a Restricted Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Restricted Subsidiary and complies with the provisions of Sections 7.9 and 7.10 and (c) no Unmatured Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(aix) any Restricted Subsidiary of Company that is not (other than a Borrower Borrower) may be merged or amalgamated with or into any other Restricted Subsidiary of Company that is not (other than a Borrower, ) or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, transactions to another any other Restricted Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation Company (other than a Borrower), so long as, at the Obligations) having greater recourse to assets or Persons for the payment or collection time of such Indebtedness event, neither Restricted Subsidiary is a Subsidiary Guarantor or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionan Offshore Guarantor;
(iiix) Company and its Restricted Subsidiaries may sell lease, including subleases and assignments of leases and subleases, real or personal property in the ordinary course of business (except in connection with a sale and lease back transaction);
(xi) Company and its Restricted Subsidiaries may enter into consignment arrangements (as consignor or as consignee) or similar arrangements for the sale of goods in the ordinary course of business;
(xii) Company and its Restricted Subsidiaries may sell, transfer or otherwise dispose of assets any award, judgment or other rights related to the O-I Venezuela Proceeds;
(xiii) Company and its Restricted Subsidiaries may (y) enter into licenses or sublicenses of Intellectual Property and general intangibles in transactions that the ordinary course of business and which do not constitute Asset Sales; providedmaterially interfere with the business of such Person and (z) abandon or dispose of intellectual property or other proprietary rights of such Person that, that in the consideration received for reasonable business judgment of such assets shall be Person, is no longer practical to maintain or useful in an amount at least equal the conduct of its business;
(xiv) Company and its Restricted Subsidiaries may enter into sale and leaseback transactions permitted under Section 8.10;
(xv) Company and its Restricted Subsidiaries may make Restricted Payments permitted pursuant to Section 8.5;
(xvi) Company and its Restricted Subsidiaries may make dispositions of owned or leased vehicles in the fair market value thereofordinary course of business;
(xvii) Company and its Restricted Subsidiaries may make dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of any their respective property or assets; and
(ivxviii) Company and its Restricted Subsidiaries may make Asset Salessurrender or waive contractual rights to settle, release or surrender any contract or litigation claims in the ordinary course of business; provided, that (a) that, notwithstanding any of the consideration received for such assets shall be foregoing clauses or anything else in an amount at least equal this Agreement to the fair market value thereof; contrary, (bi) Oxxxx-Xxxxxxxx may not less than 90% of the consideration received (issue any new Capital Stock to any Person other than to Packaging, and (ii) Packaging may not convey, sell, transfer or otherwise dispose of any consideration consisting of Capital Stock in Oxxxx-Xxxxxxxx, other than the assumption of liabilities related security interest therein pledged to such assetsCollateral Agent pursuant to the Pledge Agreement.; and
(xix) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Restricted Subsidiaries in any such Asset Sale shall be received after may consummate the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersSpecified Modernization Transaction.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Holdings shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Holdings or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of the Company may be merged with or into a Borrowerthe 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 a Borrowerthe Company or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, the Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transaction;surviving Person; 120 CREDIT AGREEMENT
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2ii) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iviii) the Company and its Subsidiaries may make Asset Sales, provided, Sales for consideration not in excess of $110,000,000 per Fiscal Year or $200,000,000 in the aggregate (during the period beginning on and including the date of this Agreement and ending when the Commitments have been terminated and the Obligations have been paid in full); provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale for each asset sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to required by subsection 2.4A(iii)(a) or subsection 2.4C;
(iv) the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries may sell, assign or transfer their accounts receivable and related assets and rights pursuant to the Existing Receivables Securitization Program or any other Permitted Receivables Securitization Program (so long as the scope of related assets and rights to be sold, assigned, or transferred is not so broad as to cause the relevant Receivables Securitization Program to cease to be a Permitted Receivables Securitization Program);
(v) the Company and its Subsidiaries may, in the ordinary course of business, discount, or otherwise compromise for less than face value, notes or accounts receivable;
(vi) the Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law; and
(vii) Any Person may be merged with or into the Company or any Subsidiary if the acquisition of the Capital Stock of such Person by the Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of the Company, the Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred and be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenderscontinuing after giving effect thereto.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers A. Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization structure of Company or any of 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 (including by discount or compromise), in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transaction;surviving Person; and
(aii) any Foreign Subsidiary of Company that is not a Borrower may be merged with or into any other Foreign Subsidiary of Company that is not a Borrower, 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 any other Foreign Subsidiary of Company.
B. Company shall not, and shall not permit any of its Subsidiaries to convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed(including its notes or receivables and Capital Stock of a Subsidiary, soldwhether newly issued or outstanding), leasedwhether now owned or hereafter acquired, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;except:
(iiii) Company and its Domestic Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset SalesSales and (b) Company's foreign Subsidiaries may sell or otherwise dispose of assets that do not constitute Collateral; provided, provided that in each case the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; andthereof (determined in good faith by the board of directors of Company);
(ivii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus equipment or other property in the ordinary course of business;
(iii) Company and its Subsidiaries may (a) sell Company's Tape Group Assets in one or more transactions and (b) make other Asset Sales, provided, Sales of assets having a fair market value not in excess of $250,000 in any fiscal year of Company; provided that in each instance (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A2.4B(iii)(a) or subsection 2.4D; and (fd) any notes received for the balance of the consideration shall be pledged to Administrative Agent;
(iv) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries shall not be may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(v) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law or if otherwise required by applicable law;
(vi) the granting of Liens permitted pursuant to consummate such Asset Sale without Section 7.2;
(vii) the prior written consent licensing of Requisite LendersIntellectual Property or know-how on commercially reasonable terms and in the ordinary course of business;
(viii) the surrender or waiver of litigation rights or settlement, release or surrender of tort or other litigation claims of any kind made in good faith;
(ix) any disposition by a Subsidiary to Company or by a Foreign Subsidiary to a Subsidiary or from a Domestic Subsidiary to another Wholly-Owned Domestic Subsidiary; and
(x) cash in connection with the payment of trade payables, ordinary operating expenses and other similar payments made in the ordinary course of business.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or and their Subsidiaries to 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company (other than a Domestic Borrower) may be merged with or into a Company, any Domestic Borrower, any Subsidiary Guarantor or Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to a BorrowerCompany or any Subsidiary Guarantor; providedPROVIDED that, that no such transaction shall result in the obligee case of such a merger, Company, such Domestic Borrower, such Subsidiary Guarantor or beneficiary such Offshore Guarantor shall be the continuing or surviving Person;
(ii) Company and its Subsidiaries may sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) The Harbor Capital Subsidiaries may make the Harbor Capital Asset Sale;
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $500,000,000 for each 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 (b) for the period from the Closing Date until the date of determination Company and its Subsidiaries may not make aggregate Asset Sales under this clause (v) of assets having an aggregate value of more than $1,000,000,000; PROVIDED that Asset Sales made by the Italian Offshore Borrowers and their Subsidiaries after the Closing Date shall not exceed $100,000,000.
(vi) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Subsidiaries may sell accounts receivable to the extent that the proceeds of Receivables Sale Indebtedness are applied as required by subsection 2.4A(ii)(f);
(vii) Company and its Subsidiaries may make Acquisitions and Investments permitted by subsection 6.3;
(viii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any Indebtedness or Contingent Obligation of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(ix) Any Person (other than Holdings or a Domestic Borrower) may be merged with or into Company or any Subsidiary if the Obligations) having greater recourse to assets or Persons for acquisition of the payment or collection Capital Stock of such Indebtedness Person by Company or Contingent Obligation than such obligee or beneficiary had immediately prior Subsidiary would not be prohibited pursuant to such transaction;
subsection 6.3; PROVIDED that (a) any in the case of Company or a Domestic Borrower, 124 Company or such Domestic Borrower shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsections 5.9 and 5.10 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto; and
(x) Any Subsidiary of Company that is not (other than a Borrower Borrower) may be merged with or into any other Subsidiary of Company that is not (other than a Borrower, ) or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, transactions to another any other Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation Company (other than a Borrower), so long as, at the Obligations) having greater recourse to assets or Persons for the payment or collection time of such Indebtedness event, neither Subsidiary is a Subsidiary Guarantor or Contingent Obligation an Offshore Guarantor. PROVIDED, THAT, notwithstanding any of the foregoing clauses or anything else in this Agreement to the contrary, (i) no Borrower may issue any new Capital Stock to any Person other than such obligee to Company or beneficiary had immediately prior to such transaction; Packaging, and (bii) any Immaterial Foreign Subsidiary neither Company nor Packaging may be merged with or into any Borrowerconvey, or be liquidatedsell, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company and its Subsidiaries may sell transfer or otherwise dispose of assets any Capital Stock in transactions that do not constitute Asset Sales; providedany Borrower, that other than the consideration received for such assets shall be in an amount at least equal security interest therein pledged to Collateral Agent pursuant to the fair market value thereof; and
(iv) Company and its Subsidiaries may make Asset Sales, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersPledge Agreement.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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), license, transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryassets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary of Company that is not a Borrower Subsidiary Guarantor may be merged with or into any other Subsidiary of Company that is not a BorrowerSubsidiary 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 another any Subsidiary of Company that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionGuarantor;
(iii) [Intentionally omitted];
(iv) assignments and licenses of Intellectual Property of Company or any Subsidiary between or among Company and its Subsidiaries, and licenses (a) to Joint Ventures or (b) in the ordinary course of business;
(v) leases of owned real property and subleases of leased real property, in each case, not interfering in any material respect with the operations of Company and its Subsidiaries;
(vi) 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 (other than assets described in clause (iii)(c) or (d) of the definition of Asset Sale) shall be in an amount at least equal to the fair market value thereof; andthereof (as determined in good faith by Company);
(ivvii) Company and its Subsidiaries may dispose of used, obsolete, worn out or surplus property in the ordinary course of business;
(viii) Company and its Subsidiaries may make Asset SalesSales of assets having a net book value on Company’s books and records not in excess of the greater of (a) $35,000,000 in any Fiscal Year or (b) to the extent (y) the Company and its Subsidiaries shall be in Pro Forma Compliance and (z) the Consolidated Net Leverage Ratio does not exceed 2.75 to 1.00 on a Pro Forma Basis, provided$100,000,000 in any Fiscal Year (to the extent such Asset Sale is a Material Event or to the extent the Consolidated Net Leverage Ratio as of the end of the most recent Fiscal Quarter for which a Compliance Certificate has been delivered was greater than 2.00 to 1.00, Company shall deliver to Administrative Agent an Officer’s Certificate (in form and substance satisfactory to Administrative Agent and including detailed calculations) certifying compliance with clauses (y) and (z) above); provided that (ai) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (as determined in good faith by Company); (bii) not less than 90at least 75% of the consideration received shall be cash; (other than iii) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto and (iv) the proceeds of any consideration consisting Asset Sales in excess of $50,000,000 shall be used to immediately repay the assumption of liabilities related to such assetsLoans;
(ix) in any such Asset Sale shall be cash (it being agreed order to resolve disputes that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries shall may sell, transfer, dispose of or discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(x) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(xi) Any transaction permitted pursuant to subsection 7.3 or 7.10;
(xii) Company and its Subsidiaries may sell or otherwise dispose of Cash Equivalents for fair value;
(xiii) Company and its Subsidiaries may sell or otherwise dispose of specific items of equipment so long as the purpose of such sale or disposition is to acquire replacement items of like-kind equipment or other equipment used or useful in the conduct of the business of Company or any of its Subsidiaries;
(xiv) leases, assignments and licenses of personal property in the ordinary course of business;
(xv) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Company and its Subsidiaries;
(xvi) dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the Joint Venture parties set forth in Joint Venture arrangements and similar binding arrangements;
(xvii) the disposition or sale of any assets acquired in connection with any Permitted Acquisition in contemplation that such assets would be sold to a third party; provided, that, (i) such assets are sold for consideration not be permitted less than the value attributed to consummate such Asset Sale without assets in the prior written consent calculation of Requisite Lendersthe aggregate consideration for such Permitted Acquisition and (ii) such disposition or sale occurs within one (1) year of the consummation of such Permitted Acquisition; and
(xviii) the winding up, liquidation or dissolution of a Subsidiary that is not a Material Subsidiary.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or and their Subsidiaries to 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company (other than a Domestic Borrower, ACI or BSN) may be merged or amalgamated with or into a Company, any Borrower, any Subsidiary Guarantor or any Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to a Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor; providedprovided that, that no such transaction shall result in the obligee case of such a merger, Company, such Borrower, such Subsidiary Guarantor or beneficiary such Offshore Guarantor shall be the continuing or surviving Person;
(ii) Company and its Subsidiaries may sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) [reserved];
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $500,000,000 for any twelve-month period provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and (b) for the period from the Second Restatement Date until the date of determination Company and its Subsidiaries may not make aggregate Asset Sales under this clause (v) of assets having an aggregate value of more than $1,000,000,000; provided that Asset Sales made by Avir and its Subsidiaries after the Second Restatement Date shall not exceed $100,000,000;
(vi) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Subsidiaries may sell accounts receivable to the extent that the proceeds of Receivables Sale Indebtedness are applied as required by subsection 2.4B(ii)(f);
(vii) Company and its Subsidiaries may make Acquisitions and Investments permitted by subsection 6.3;
(viii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any Indebtedness or Contingent Obligation of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(ix) Any Person (other than Holdings, a Domestic Borrower, ACI or BSN) may be merged or amalgamated with or into Company or any Subsidiary if the Obligations) having greater recourse to assets or Persons for acquisition of the payment or collection Capital Stock of such Indebtedness Person by Company or Contingent Obligation than such obligee Subsidiary would not be prohibited pursuant to subsection 6.3; provided that (a) in the case of Company or beneficiary had immediately prior to a Domestic Borrower, Company or such transactionDomestic Borrower shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsections 5.9 and 5.10 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(ax) any Any Subsidiary of Company that is not (other than a Borrower Borrower) may be merged with or into any other Subsidiary of Company that is not (other than a Borrower, ) or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, transactions to another any other Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation Company (other than a Borrower), so long as, at the Obligations) having greater recourse to assets or Persons for the payment or collection time of such Indebtedness event, neither Subsidiary is a Subsidiary Guarantor or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionan Offshore Guarantor;
(iiixi) BSN Glasspack Services may sell accounts receivable in connection with the Existing BSN Receivables Securitization Facility; and
(xii) Company and its Subsidiaries may sell consummate the BSN Acquisition in accordance with the BSN Share Purchase Agreement, provided, that, notwithstanding any of the foregoing clauses or anything else in this Agreement to the contrary, (i) no Domestic Borrower may issue any new Capital Stock to any Person other than to Company or Packaging, and (ii) neither Company nor Packaging may convey, sell, transfer or otherwise dispose of assets any Capital Stock in transactions that do not constitute Asset Sales; providedany Domestic Borrower, that other than the consideration received for such assets shall be in an amount at least equal security interest therein pledged to Collateral Agent pursuant to the fair market value thereof; and
(iv) Company and its Subsidiaries may make Asset Sales, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersPledge Agreement.
Appears in 1 contract
Samples: Secured Credit Agreement (Owens Illinois Group Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company (other than a License Sub) may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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;
(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 make Asset Sales, provided, Sales of assets having a fair market value not in excess of $25,000,000 in the aggregate since the Closing Date; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))less than 80% cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a); 97 106
(v) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the extent Governing Body of the Subsidiary if required under by applicable law;
(vi) Any Person may be merged with or into Company or any Subsidiary (other than a License Sub) if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 2.4A7.3; and provided that (fa) in the event that case of Company, Company shall be the Net Asset Sale Proceeds from any Asset Salecontinuing or surviving Person, when added to (b) if a Subsidiary is not the aggregate Net Asset Sale Proceeds from all other Asset Sales surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsections 6.8 and 6.9, (c) if the Subsidiary is a Subsidiary Guarantor such Subsidiary Guarantor is the continuing or surviving Person, and (d) no Potential Event of Default or Event of Default shall have occurred or be continuing after the Closing Date, would exceed $10,000,000giving effect thereto;
(vii) So long as no Event of Default or Potential Event of Default exists, Company and its Subsidiaries may sell additional Capital Stock first issued after the Closing Date in iKnow Bakersfield, LLC and any other Subsidiary of the Company existing on or formed after the Closing Date whose primary business is the management, operation, investment or other participation in or of www.xxxxxxxxxxxxxxxx.xxx xx Bakersfield, California, www.xxxxxxxxxxxxxx.xxx xx Rochester, New York and www.xxxxxxxxxxxxxxxxx.xxx xx Monterey, California (the "IKNOW NETWORK") (iKnow Bakersfield, LLC and such Subsidiaries are collectively referred to as the "IKNOW SUBSIDIARIES") to third Persons, provided that Company and its Subsidiaries shall own not less than 51% of the Capital Stock in each such iKnow Subsidiary and provided further that such sales of such additional Capital Stock shall not be permitted exceed $5,000,000 in the aggregate; and
(viii) If Owner delivers a Spinoff Notice pursuant to consummate such Asset Sale without Section 6.1(a) of the prior written consent WETM LMA, transfer all shares of Requisite Lenderscommon stock in Owner owned by Programmer to Owner pursuant to Section 6.1(a) of the WETM LMA.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise), in one transaction or a series of transactions, 109 all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower may be merged with or into a Borrower, 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 a Borrower; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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
(iv) Company and its Subsidiaries may make Asset Sales, provided, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A2.3A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary or, in the case of any Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Projectissue shares of Capital Stock), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor that is not a BorrowerRegulated 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 a Borrower; provided, that no such transaction shall result in the obligee Company or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any wholly-owned Subsidiary of Company Guarantor that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 ofRegulated Subsidiary; provided that, in one transaction or a series of transactions, to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign wholly-owned Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower Guarantor shall be a the continuing or surviving entity in any such transactionPerson;
(iiiii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset SalesSales (excluding sales consisting of the Capital Stock of a Principal Subsidiary); provided, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; andthereof and (b) the assets so sold shall not consist of any group contracts or subscriber contracts relating to group health plans of Company or any Principal Subsidiary;
(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 make Asset Sales, provided, Sales of assets (excluding Asset Sales consisting of the Capital Stock of a Principal Subsidiary) having a fair market value not in excess of $2,000,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90at least 80% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A2.4B(iii)(a) or subsection 2.4D; and (fd) the assets so sold shall not consist of any group contracts or subscriber contracts relating to group health plans of Company or any Principal Subsidiary;
(v) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Capital Stock of a Subsidiary may be sold to Company or a Subsidiary Guarantor that is not a Regulated Subsidiary;
(vii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(viii) Any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be permitted continuing after giving effect thereto; and
(ix) Company or any Subsidiary may sell or otherwise dispose of any stock or assets of, liquidate, or discontinue any part of any business of Company or its Subsidiaries, if in Company's sole discretion, the preservation thereof is no longer desirable or in the best interests of Company or any Subsidiary, and the disposition could not reasonably be expected to consummate such Asset Sale without the prior written consent of Requisite Lendersresult in a Material Adverse Effect.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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;
(iviii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(v) Company and its Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vi) Company and its Subsidiaries may (a) make dispositions permitted pursuant to subsection 7.9, (b) sell or otherwise transfer the Metarie Offices and the Biloxi Facility and (c) make other Asset SalesSales of assets having a fair market value not to exceed $15,000,000 in the aggregate, provided, in each case provided that (a1) the consideration received for such assets shall be in the form of Cash or Cash Equivalents in an amount at least equal to the fair market value thereof; , (b2) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms proceeds of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such dispositions or other Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; 2.4A(iii)(a), and (f3) in the event that the Net Asset Sale Proceeds from any after giving effect to each such Asset Sale, when added to on a reasonable and prudent pro forma basis (in accordance with the aggregate Net Asset Sale Proceeds from all other Asset Sales after standards set forth in Article 11 of Regulation S-X under the Closing DateSecurities Act) as determined by the chief executive officer or chief financial officer of Company, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate as if such Asset Sale without had occurred on the prior written consent first day of Requisite Lendersthe most recent twelve-month period for which Company’s results of operations are available, Company would be in compliance with the covenants set forth in subsection 7.6, and Company has delivered to Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in form and substance satisfactory to Administrative Agent required to confirm such statement, provided that no such Officer’s Certificate or related information and calculations shall be required to be delivered to Administrative Agent in the case of any Asset Sale of a restaurant made in connection with a relocation of such restaurant within the same metropolitan area if the new relocated restaurant is open at the time of such Asset Sale; and
(vii) any Person may be merged with or into any Subsidiary if the acquisition of the Capital Stock of such Person by such Subsidiary would have been permitted pursuant to subsection 7.3; provided that if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (b) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Such Loan Party shall notnot alter its corporate or legal structure, and such Loan Party shall not and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or Subsidiaries to 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) [Intentionally Omitted];
(ii) any Borrower Foreign Subsidiary that is not a Subsidiary Guarantor may be merged with or into any other Foreign Subsidiary that is not a Borrower, 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 a Borrower; provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iv) Company and its Subsidiaries may make Asset Salesdispose of obsolete, provided, that worn out or surplus property in the ordinary course of business;
(av) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; [Intentionally Omitted];
(b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assetsvi) in any such Asset Sale shall be cash order to resolve disputes (it being agreed or settle with non-paying account debtors) that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries shall not be permitted may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to consummate such Asset Sale without qualify members of the prior written consent Governing Body of Requisite Lendersthe Subsidiary if and to the extent required by Applicable Law; and
(viii) Company and its Subsidiaries may abandon or otherwise dispose of Intellectual Property that is no longer used or useful in the business of Company and its Subsidiaries.
Appears in 1 contract
Samples: Superpriority Debtor in Possession Credit Agreement (Propex Inc.)
Restriction on Fundamental Changes; Asset Sales. Borrowers ChipPAC shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company ChipPAC or any of its Subsidiaries, 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 (including by discount or compromise), in one transaction or a series of transactions, all or any part portion of its businessbusiness or assets, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise all or a substantial part of the business or assets of, or Capital Stock or other evidence of beneficial ownership of, any Person or any unit or division thereof, except:
(i) any Borrower Any Subsidiary of ChipPAC (other than Company) may be merged with or into a BorrowerChipPAC or any wholly owned 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 139 a series of transactions, to a BorrowerChipPAC or any wholly owned Subsidiary; providedprovided that, that no such transaction shall result in the obligee case of such a merger involving ChipPAC, ChipPAC -------- shall be the continuing or beneficiary surviving corporation (or, if the purpose of such merger is to reincorporate ChipPAC in the State of Delaware, such Subsidiary may be the surviving corporation of such merger so long as it assumes all the obligations of ChipPAC hereunder and under the other Loan Documents in a writing in form and substance reasonably satisfactory to the Administrative Agent) and in the case of any Indebtedness other merger involving a Loan Party, a Loan Party shall be the continuing or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionsurviving corporation;
(aii) any Subsidiary of Company that is not a Borrower ChipPAC and its Subsidiaries may be merged with or into any acquire inventory, equipment and other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company ChipPAC 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; andthereof (determined in good faith by the board of directors of ChipPAC or its Subsidiaries, as the case may be);
(iv) Company ChipPAC and its Subsidiaries may make Asset SalesSales of assets having a fair market value (determined in good faith by the board of directors of ChipPAC or its Subsidiaries, providedas the case may be) not in excess of $15,000,000 (or $30,000,000 if, that after giving effect to such Asset Sale, the Leverage Ratio determined on a Pro Forma Basis is less than 3.50:1.00) for any Fiscal Year; provided that, in each such case, (ax) the -------- consideration received for such assets shall be in an amount at least equal to the fair market value thereof; thereof (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) determined in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may good faith by the relevant terms board of such Asset Sale be deferred more than six months after the date directors of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)ChipPAC); and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ey) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a);
(fv) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company ChipPAC and its Subsidiaries may acquire the stock or other equity Securities of any Person that, as a result of such acquisition, becomes a wholly owned Subsidiary of ChipPAC or any of its Subsidiaries or is merged into ChipPAC or its Subsidiaries, or may acquire the business, property or assets of any Person; provided, that (x) on a Pro Forma Basis, -------- ChipPAC shall be in compliance with each of the covenants set forth in subsection 7.6, (y) no Default or Event of Default shall have occurred and be continuing or result therefrom and (z) after giving effect to such Acquisition, if the Leverage Ratio determined on a Pro Forma Basis shall exceed 2.75:1.00, then the aggregate consideration paid or assumed in respect of all Permitted Acquisitions under this Agreement shall not exceed the sum of $50,000,000 and the Excess Proceeds Amount; 140
(vi) ChipPAC or its Subsidiaries may create or, if permitted by clause (v) above, acquire new Subsidiaries; provided that, (a) promptly -------- after the formation or acquisition of each such Subsidiary, ChipPAC or such Subsidiary, as applicable, shall deliver or cause to be permitted delivered each of the items and execute each of the documents, if any, required pursuant to subsection 6.9; and
(vii) ChipPAC may consummate such Asset Sale without the prior written consent of Requisite LendersPurchase Transactions.
Appears in 1 contract
Samples: Credit Agreement (Chippac Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers shall notSubject to subsection 5.2, Company and shall its Subsidiaries will not permit alter in any material respect their respective Subsidiaries tocorporate, alter the capital or legal form of organization of Company or any of its Subsidiaries, structure or enter into any transaction of merger merger, or consolidationconsolidate, 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its their respective business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, exceptor acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except in accordance with subsection 6.3.A, 6.3.D or as follows:
A. Company and its Subsidiaries may sell or dispose of assets for the Fair Market Value thereof; provided that (ix) in the case of a sale or disposition, or a series of related sales or dispositions, in excess of $500,000, the determination of the value thereof shall be made in good faith by the board of directors of Company or such Subsidiary, as the case may be, (y) fifty percent of the consideration therefor is received in cash at the consummation of the sale thereof, and (z) after giving effect thereto, the aggregate of all notes or other evidences of Indebtedness in respect of the non-cash portion of all such dispositions made by Company and its Subsidiaries shall in no event exceed $50,000,000 outstanding at any Borrower one time;
B. Company and its Subsidiaries may sell or otherwise dispose of obsolete or worn out property and may sell, resell or otherwise dispose of real or personal property held for sale or resale in the ordinary course of business;
C. any Subsidiary of Company may be merged or consolidated with or into a Borrowerany wholly-owned Subsidiary of Company if such wholly-owned Subsidiary shall be the surviving corporation;
D. any wholly-owned Subsidiary of Company may be wound-up, or be liquidated, wound up liquidated or dissolved, or all or any part substantially all of its business, property or assets may be conveyedcon- veyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrowerto, any other wholly-owned Subsidiary of Company; provided, that no such transaction shall result in the obligee or beneficiary and
E. Company may make distributions on account of any Indebtedness or Contingent Obligation (class of shares of its capital stock in accordance with subsection 6.4; provided that, if any such distribution is made with assets other than the Obligations) having greater recourse to assets Cash or Persons for the payment or collection shares of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary common stock of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a BorrowerCompany, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided, that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; and
(iv) Company and its Subsidiaries may make Asset Salesof such assets, provided, that (a) the consideration received for such assets shall be in an amount at least equal to plus the fair market value thereof; (b) not less than 90% of all assets previously distributed to Company s shareholders pursuant to this subsection 6.6.E, plus all amounts received by Company or any of its Subsidiaries from and after the consideration received Closing Date in respect of Cash Proceeds of Asset Sales, Condemnation Proceeds and Insurance Proceeds (other than those items specifically excluded in the parenthetical contained in the definition of Aggregate Excess Proceeds) shall in no event exceed $50,000,000. To the extent necessary to consummate any consideration consisting transaction permitted by this subsection 6.6, Agent and the Lenders agree to release from the pledge of the assumption Pledge Agreement the capital stock of liabilities related to such assets) in any such Asset Sale shall be cash (Easco if it being agreed that cash is the receipt of which may by the relevant terms subject of such Asset Sale be deferred more than six months after transaction and to release the date Subsidiary Guaranty of consummation any Subsidiary Guarantor that is the subject of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenderstransaction.
Appears in 1 contract
Samples: Credit Agreement (Danaher Corp /De/)
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or (a) any of its Subsidiaries, or and their Material Subsidiaries to enter into any transaction of merger merger, amalgamation or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or (b) any of its and their Restricted Subsidiaries to convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (x) any Borrower Restricted Subsidiary of Company (other than a Borrower) may be merged or amalgamated with or into a Company, any Borrower, any Subsidiary Guarantor or any Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor; provided that, in the case of such a merger or amalgamation, Company, such Borrower, such Subsidiary Guarantor or such Offshore Guarantor shall be the continuing or surviving Person and (y) a Borrower (other than Xxxxx-Xxxxxxxx) may merge with and into any other Borrower incorporated or otherwise organized in the same jurisdiction as the Borrower with or into which such Borrower is merging if (a) the aggregate amount of outstanding Loans of the surviving Borrower will not exceed such Borrower’s Multicurrency Revolving Sublimit and (b) Administrative Agent determines that such merger would not be materially adverse to the interests of the Lenders;
(ii) Company and its Restricted Subsidiaries may sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out, uneconomical, unmerchantable, unsaleable or surplus property in the ordinary course of business;
(iv) Company and its Restricted Subsidiaries may make Asset Sales of assets having an aggregate book value (at the time of disposition) not in excess of 15% of Consolidated Tangible Assets in 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 (b) the Net Proceeds arising from such Asset Sales shall be applied as required under Section 4.4(c); provided, however, to the extent that no such transaction shall result the Net Proceeds of any Asset Sale that are not required to be used to prepay the Loans pursuant to Section 4.4(c) are reinvested in the obligee manner and in the time periods prescribed in Section 4.4(c), and if Company or beneficiary such Restricted Subsidiary has complied with the provisions of Section 7.9 with respect to any assets purchased with such reinvested proceeds, such Asset Sale shall be disregarded for purposes of calculations pursuant to this Section 8.7(iv) (and shall otherwise be deemed to be permitted under this Section 8.7(iv)) to the extent of the reinvested proceeds, from and after the time of compliance with Section 7.9 with respect to the acquisition of such other property;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Restricted Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Restricted Subsidiaries may sell accounts receivable in connection with Receivables Sale Indebtedness permitted under Section 8.1(xiv);
(vi) Company and its Restricted Subsidiaries may make Acquisitions and Investments permitted by Section 8.3;
(vii) Company or a Restricted Subsidiary may sell or dispose of shares of Capital Stock of any Indebtedness or Contingent Obligation of its Restricted Subsidiaries in order to qualify members of the Governing Body of the Restricted Subsidiary if required by applicable law;
(viii) any Person (other than Holdings or a Borrower) may be merged or amalgamated with or into Company or any Restricted Subsidiary if the Obligations) having greater recourse to assets or Persons for acquisition of the payment or collection Capital Stock of such Indebtedness Person by Company or Contingent Obligation than such obligee Restricted Subsidiary would not be prohibited pursuant to Section 8.3; provided that (a) in the case of Company or beneficiary had immediately prior to a Borrower, Company or such transactionBorrower shall be the continuing or surviving Person, (b) if a Restricted Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Restricted Subsidiary and complies with the provisions of Sections 7.9 and 7.10 and (c) no Unmatured Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(aix) any Restricted Subsidiary of Company that is not (other than a Borrower Borrower) may be merged or amalgamated with or into any other Restricted Subsidiary of Company that is not (other than a Borrower, ) or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, transactions to another any other Restricted Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation Company (other than a Borrower), so long as, at the Obligations) having greater recourse to assets or Persons for the payment or collection time of such Indebtedness event, neither Restricted Subsidiary is a Subsidiary Guarantor or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionan Offshore Guarantor;
(iiix) Company and its Restricted Subsidiaries may sell lease, including subleases and assignments of leases and subleases, real or personal property in the ordinary course of business (except in connection with a sale and lease back transaction);
(xi) Company and its Restricted Subsidiaries may enter into consignment arrangements (as consignor or as consignee) or similar arrangements for the sale of goods in the ordinary course of business;
(xii) Company and its Restricted Subsidiaries may sell, transfer or otherwise dispose of assets any award, judgment or other rights related to the O-I Venezuela Proceeds;
(xiii) Company and its Restricted Subsidiaries may (y) enter into licenses or sublicenses of Intellectual Property and general intangibles in transactions that the ordinary course of business and which do not constitute Asset Sales; providedmaterially interfere with the business of such Person and (z) abandon or dispose of intellectual property or other proprietary rights of such Person that, that in the consideration received for reasonable business judgment of such assets shall be Person, is no longer practical to maintain or useful in an amount at least equal the conduct of its business;
(xiv) Company and its Restricted Subsidiaries may enter into sale and leaseback transactions permitted under Section 8.10;
(xv) Company and its Restricted Subsidiaries may make Restricted Payments permitted pursuant to Section 8.5;
(xvi) Company and its Restricted Subsidiaries may make dispositions of owned or leased vehicles in the fair market value thereofordinary course of business;
(xvii) Company and its Restricted Subsidiaries may make dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of any their respective property or assets; and
(ivxviii) Company and its Restricted Subsidiaries may make Asset Salessurrender or waive contractual rights to settle, release or surrender any contract or litigation claims in the ordinary course of business; provided, that (a) that, notwithstanding any of the consideration received for such assets shall be foregoing clauses or anything else in an amount at least equal this Agreement to the fair market value thereof; contrary, (bi) Xxxxx-Xxxxxxxx may not less than 90% of the consideration received (issue any new Capital Stock to any Person other than to Packaging, and (ii) Packaging may not convey, sell, transfer or otherwise dispose of any consideration consisting of Capital Stock in Xxxxx-Xxxxxxxx, other than the assumption of liabilities related security interest therein pledged to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation Collateral Agent pursuant to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersPledge Agreement.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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), license, transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryassets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged or consolidated with or into a BorrowerCompany, 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 a BorrowerCompany; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger or Contingent Obligation than such obligee consolidation, Company shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary of Company that is not a Borrower may be merged or consolidated with or into any other Subsidiary of Company that is not a BorrowerCompany, 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 another any Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionCompany;
(iii) an Asset Sale identified on Schedule 7.7 to the Disclosure Letter;
(iv) (iv) assignments and licenses of Intellectual Property of Company or any Subsidiary between or among Company and its Subsidiaries, and licenses (a) to Joint Ventures or (b) in the ordinary course of business;
(v) leases of owned real property and subleases of leased real property, in each case, not interfering in any material respect with the operations of Company and its Subsidiaries;
(vi) 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 (other than assets described in clause (iii)(c) or (d) of the definition of Asset Sale) shall be in an amount at least equal to the fair market value thereof; andthereof (as determined in good faith by Company);
(ivvii) Company and its Subsidiaries may dispose of used, obsolete, worn out or surplus property in the ordinary course of business;
(viii) Company and its Subsidiaries may make other Asset Sales, provided, ; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (as determined in good faith by Company); (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed cash, Cash Equivalents or notes payable that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more are scheduled to mature less than six months after 366 days from the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto and (d) any Indebtedness in relation to the assets sold in any no such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added or series of related Asset Sales, shall result in all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, having been sold or otherwise disposed of;
(ix) in order to resolve disputes that occur in the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries shall not may sell, transfer, dispose of or discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(x) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(xi) (a) all or any part of the business, property or assets of the Company may be permitted conveyed, sold, leased, transferred or otherwise disposed of to consummate any Subsidiary of Company; (b) Company may enter into any merger or consolidation with any Person if the Company is the surviving Person; and (c) any Subsidiary of the Company may enter into any merger or consolidation with any Person (provided that if such merger or consolidation of such Subsidiary is in connection with an Asset Sale, such Asset Sale without is otherwise in compliance with this Section 7.7);
(xii) Company and its Subsidiaries may sell or otherwise dispose of Cash and Cash Equivalents for fair value or in the prior written consent ordinary course of Requisite Lendersbusiness;
(xiii) Company and its Subsidiaries may sell or otherwise dispose of specific items of equipment so long as the purpose of such sale or disposition is to acquire replacement items of like-kind equipment or other equipment used or useful in the conduct of the business of Company or any of its Subsidiaries;
(xiv) leases, assignments and licenses of personal property in the ordinary course of business;
(xv) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Company and its Subsidiaries; and
(xvi) dispositions of Investments in Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the Joint Venture parties set forth in Joint Venture arrangements and similar binding arrangements.
Appears in 1 contract
Samples: Loan Agreement (Hexcel Corp /De/)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall notnot alter its corporate or legal structure, and Company shall not and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or Subsidiaries to 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company other than SI Concrete Systems Corporation may be merged with or into a BorrowerCompany or any wholly-owned Subsidiary Guarantor, provided that in such case Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving Person, or be liquidated, wound up or dissolved, dissolved or all or any part of its the business, property or assets of any Subsidiary of Company may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower; provided, that no such transaction shall result in the obligee Company or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionwholly-owned Subsidiary Guarantor;
(aii) any Foreign Subsidiary of Company that is not a Borrower Subsidiary Guarantor may be merged with or into any other Foreign Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iv) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(v) Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $65,000,000 in the aggregate after the Closing Date for all Asset Sales made pursuant to this clause (v); provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D;
(vi) in order to resolve disputes (or settle with non-paying account debtors) that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if and to the extent required under subsection 2.4A; by Applicable Law;
(viii) Company may consummate the Acquisition in accordance with the terms of the Acquisition Agreement;
(ix) Company may consummate the Roanoke Sale so long as (A) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and at least 75% of the consideration received shall be cash, (fB) in if such transaction is effected through the event that Roanoke Like-Kind Exchange, the cash consideration paid by the buyer of the Roanoke Property is actually received by Company or one of the Subsidiary Guarantors pursuant to the Like-Kind Exchange Documents no later than the Business Day following the date of the sale, (C) the Net Asset Sale Proceeds from any Asset Salearising therefrom are sufficient to repay in full all Bridge Loans then outstanding, when added to the aggregate and (D) such Net Asset Sale Proceeds from all are applied as required by subsection 2.4B(iii)(f);
(x) any Person (other Asset Sales than Company or any Subsidiary of Company) may be merged with or into Company or any Subsidiary of Company, and Company or any Subsidiary of Company may merge with any such Person, if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3, provided that:
(a) in the case of a merger with or into Company, Company shall be the continuing or surviving Person;
(b) in the case of a merger with or into a Subsidiary Guarantor, the Subsidiary Guarantor shall be the continuing or surviving Person;
(c) in the case of any other merger, if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary of Company and complies with the provisions of subsection 6.8;
(d) no Potential Event of Default or Event of Default shall have occurred or be continuing immediately after the Closing Date, would exceed $10,000,000, giving effect thereto; and
(xi) Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without may abandon or otherwise dispose of Intellectual Property that is no longer used or useful in the prior written consent business of Requisite LendersCompany and its Subsidiaries.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company (other than an Outsourcing Project Subsidiary) may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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;
(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 make Asset Sales, provided, Sales of assets having a fair market value not in excess of $5,000,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may Cash or non-Cash consideration permitted by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))subsection 7.3; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D;
(v) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the extent Governing Body of the Subsidiary if required under by applicable law; and
(vi) any Person may be merged with or into any Subsidiary of Company if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 2.4A7.3; provided that if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (fc) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales no Potential Event of Default or Event of Default shall have occurred or be continuing after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersgiving effect thereto.
Appears in 1 contract
Samples: Credit Agreement (Itron Inc /Wa/)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary Company may, with at least ten days’ prior written notice to Administrative Agent, reincorporate to change its jurisdiction of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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, organization to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionDelaware;
(iii) 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;
(iv) Company and its Subsidiaries may make Asset Salesdispose of obsolete, provided, that worn out or surplus property in the ordinary course of business;
(a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assetsv) in any such Asset Sale shall be cash (it being agreed order to resolve disputes that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) Company may sell or dispose of the Sugar Land Facility; and
(viii) any Person may be merged with or into any Subsidiary if the acquisition of the Capital Stock of such Person by such Subsidiary would have been permitted pursuant to subsection 7.3; provided that if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (b) no Potential Event of Default or Event of Default shall not have occurred or be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenderscontinuing after giving effect thereto.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a Borrower; providedCompany or any wholly-owned Subsidiary Guarantor (or, that no such transaction shall result in the obligee or beneficiary case of any Indebtedness or Contingent Obligation (other than a Foreign Subsidiary, to another Foreign Subsidiary); provided that, in the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) Company and its Subsidiaries may sell sell, lease 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;
(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 make Asset Sales, provided, Sales of assets having a fair market value not in excess of $10,000,000 in 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; (b) not less than 9075% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a) or subsection 2.4D;
(fv) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) the Merger may occur in accordance with the terms and conditions of the Merger Agreement;
(viii) any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and subsection 6.9 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(ix) Company or a Subsidiary may, in the ordinary course of business, liquidate Cash Equivalents;
(x) Company and its Subsidiaries may sell or grant licenses to use Intellectual Property to the extent such licenses do not prohibit the licensor from using such Intellectual Property;
(xi) Company and its Subsidiaries may sell and lease back property in a transaction permitted by subsection 7.10; and
(xii) Company and its Subsidiaries may settle accounts receivable owing to consummate such Asset Sale without Company or any of its Subsidiaries in connection with the prior written consent making of Requisite Lendersloans permitted by subsection 7.3(xiv).
Appears in 1 contract
Samples: Credit Agreement (FTD Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of its Subsidiaries, create any new 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise any part of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any domestic Wholly Owned Subsidiary of Company, or be liquidated, wound up or dissolved, or all or any substantial 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 a BorrowerCompany or any domestic Wholly Owned Subsidiary of Company; providedprovided that, that no such transaction shall result in the obligee case of such a merger, Company or beneficiary of any Indebtedness such Wholly Owned Subsidiary shall be the continuing or Contingent Obligation surviving corporation;
(ii) Company and its Subsidiaries may acquire inventory (other than the Obligations) having greater recourse to receivables portfolios), equipment and other assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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; andthereof (determined in good faith by the board of directors of Company);
(iv) Company and its Subsidiaries may make any Asset SalesSale of assets that have, providedin the aggregate, a fair market value (determined in good faith by the board of directors of Company) not in excess of 20% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior to such Asset Sale; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (determined in good faith by the board of directors of Company); (by) not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale therefor shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to required by subsection 2.4B(iii)(a);
(v) Company may make acquisitions of receivables portfolios and other assets and businesses (including acquisitions of the extent required under subsection 2.4A; and capital stock of another Person), provided that:
(fa) in the event that the Net Asset Sale Proceeds from aggregate amount of all such acquisitions in any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, Fiscal Year would exceed $10,000,0005,000,000 after giving effect to any such proposed acquisition, Company and its Subsidiaries (x) the Interest Coverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall not be less than the ratio set forth in subsection 7.6A applicable at the time of such acquisition plus 0.25 and (y) the Leverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall not be greater than (1) the ratio set forth in subsection 7.6B applicable at the time of such acquisition, if such acquisition is consummated on or prior to December 31, 1997, and (2) the ratio set forth in subsection 7.6B applicable at the time of such acquisition minus 0.25, if such acquisition is consummated after December 31, 1997;
(b) any receivables portfolio acquired shall be a Qualified Loan Portfolio;
(c) the aggregate amount expended for such acquisitions during (1) Fiscal Year 1997 shall not exceed $60,000,000 and (2) any Fiscal Year thereafter shall not exceed $30,000,000; provided, however, that amounts expended in connection with the acquisition permitted under subsection 7.7(vi) shall not be included in the calculation of such aggregate amount; and provided further, that such amount shall (A) in Fiscal Year 1998, be increased by an amount equal to the excess, if any, of $60,000,000 over the actual amount expended for acquisitions permitted under this subsection 7.7(v) for Fiscal Year 1997, and (B) in Fiscal Year 1999 and each Fiscal Year thereafter, be increased by an amount equal to the excess, if any (but in no event more than $10,000,000), of $30,000,000 over the actual amount expended for acquisitions permitted under this subsection 7.7(v) for the immediately preceding Fiscal Year;
(d) that portion of Consolidated EBITDA attributable to any assets so acquired in any single acquisition or series of related acquisitions, as projected by Company for the twelve-month period immediately following the date of such acquisition or the date of the first of such series of related acquisitions, as the case may be, shall not exceed 20% of Consolidated EBITDA for the four- Fiscal Quarter period most recently ended prior to the date of such acquisition, and Company shall have delivered an Officer's Certificate to Co-Administrative Agents (together with supporting information therefor) to the foregoing effect; and
(e) 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
(vi) Company may consummate such Asset Sale without the prior written consent of Requisite LendersAccelerated Acquisition and the NSA Acquisition on the Effective Date and on the relevant Funding Date thereafter for Acquisition Loans.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers shall not, and shall not permit any of their respective Restricted Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Borrowers or any of its Subsidiariestheir Restricted Subsidiaries or any Joint Venture, 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a SubsidiarySubsidiary or Joint Venture, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Restricted Subsidiary of Company may be merged with or into a Borrowerany Borrower or any Material 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 a Borrowerany Borrower or any Material Subsidiary; providedprovided that, that no such transaction shall result in the obligee case of such a merger, such Borrower or beneficiary of such Material Subsidiary shall be -------- the continuing or surviving Person; any Indebtedness or Contingent Obligation (Restricted Subsidiary other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any a Material Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a BorrowerRestricted 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionRestricted Subsidiary;
(iiiii) Company Borrowers and its their Restricted 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;
(iii) Borrowers and their Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Borrowers may sell the Refinery Assets provided that (i) the terms and conditions of such sale are reasonably satisfactory to Supermajority Lenders, (ii) that any non-Cash consideration shall be pledged to Agent as Collateral, (iii) the Cash proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(a) or subsection 2.4D, and (iv) Company shall, prior to consummating any such sale, enter into a long term supply agreement with the purchaser of the Refinery Assets to provide coke to the Company's Coffeyville coke gasification facility on terms and its for a duration reasonably acceptable to Supermajority Lenders;
(v) Borrowers and their Restricted Subsidiaries may make Asset Sales, provided, Sales in any Fiscal Year in an aggregate amount not to exceed $20,000,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less no more than 9025% of such consideration may be non-Cash consideration which is pledged as Collateral to the Agent and provided that the aggregate amount of such non-Cash consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) may not exceed $5,000,000 in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Fiscal Year; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds Cash proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D; and
(vi) Company or a Restricted Subsidiary may sell or dispose of shares of Capital Stock of any of their Restricted Subsidiaries, in order to qualify members of the extent Governing Body of the Restricted Subsidiary if required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersby applicable law.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transaction;surviving Person; 77 Credit Agreement
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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;
(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 make Asset Sales, provided, Sales of assets having a fair market value not in excess of $1,000,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; thereof and (b) not less than 90% of the sole consideration received shall be Cash or an Investment permitted by subsection 7.3;
(other than any consideration consisting of the assumption of liabilities related to such assetsv) in any such Asset Sale shall be cash (it being agreed order to resolve disputes that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries shall not be permitted may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable; and
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to consummate such Asset Sale without qualify members of the prior written consent Governing Body of Requisite Lendersthe Subsidiary if required by applicable law.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Holdings and Company shall not, and shall not permit any of their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or enter into any transaction of merger or consolidation, or liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease sublease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a SubsidiarySubsidiary of Company, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any 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 a BorrowerCompany or any Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(ii) Company and its Subsidiaries may sell or otherwise dispose of inventory in the ordinary course of business;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus assets or of assets no longer used or useful in the conduct of the business of Company and its Subsidiaries, in each case, in the ordinary course of business or may otherwise sell, lease, transfer or otherwise dispose or exchange assets to the extent not constituting Asset Sales;
(iv) Company and its Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $1,800,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof determined in good faith by the board of director of Company (or any Officer of Company delegated authority to make such determinations by such board of directors) and (b) the consideration received shall be at least 75% cash; provided that for purposes of this subclause (b) any Designated Noncash Consideration in an amount not to exceed $500,000 (provided that for purposes of this proviso any Designated Noncash Consideration which has subsequently been sold for, or otherwise converted to cash, shall not be counted against such limitation to the extent of the cash received) shall be deemed to be cash;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise or sell for less than the face value thereof, notes or accounts receivable;
(vi) Company or any of its Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(vii) the Merger may occur in accordance with the terms and conditions of the Merger Agreement;
(viii) any Person may be merged with or into Company or any of its Subsidiaries if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) in the case of a Subsidiary of Company, if such Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary of Company that is not a Borrower and complies with the provisions of subsection 6.8 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(ix) any Foreign Subsidiary of Company may be merged with or into any other Foreign Subsidiary of Company that is not a BorrowerCompany, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionCompany;
(iiix) Company or any of its Subsidiaries may lease, sublease, license or sublicense property (and surrender and terminate leases and other occupancy agreements) in the ordinary course of business and which do not materially interfere with the business of Company and its Subsidiaries or materially adversely affect the Collateral taken as a whole;
(xi) Company or any of its Subsidiaries may abandon Intellectual Property which, in the reasonable good faith determination of Company or such Subsidiary, is uneconomical, negligible, obsolete or otherwise not material in the conduct of the business of Company or such Subsidiary;
(xii) Company or any of its Subsidiaries may dispose of any asset subject to any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding; provided that the Net Insurance/Condemnation Proceeds received by Company or such Subsidiary shall be applied as required by subsection 2.4(B)(iii)(b);
(xiii) Company or any of its Subsidiaries may dispose of Investments in Joint Ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties in, joint venture agreements and similar binding arrangements;
(xiv) Company or any of 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 property to the fair market value thereofextent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sale or other disposition are promptly applied to the purchase price of such replacement property; and
(ivxv) Holdings, Company and its Subsidiaries may make Asset SalesInvestments permitted by subsection 7.3, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may incur Liens permitted by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received subsection 7.2 and make Restricted Junior Payments permitted by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders7.4.
Appears in 1 contract
Samples: Second Lien Credit Agreement (IntraLinks Holdings, Inc.)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of its Subsidiaries, or enter into any transaction of amalgamation, 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and or Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be amalgamated or merged with or into a BorrowerCompany or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, provided that in such case Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving Person; or all or any part of its the business, property or assets of any Subsidiary of Company may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower; provided, that no such transaction shall result in the obligee Company or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionwholly-owned Subsidiary Guarantor;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business; and119
(iv) Company and its Subsidiaries may make Asset SalesSales of assets having a fair market value not in excess of $15,000,000 in any Fiscal Year, provided, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; , (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); cash, and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a) or subsection 2.4G;
(fv) in order to resolve disputes (or to settle with non-paying account debtors) that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if and to the extent required by Applicable Law;
(vii) the Acquisition and the Amalgamation may occur in accordance with the terms and conditions of the Acquisition Agreement and the Articles of Amalgamation, respectively; and
(viii) except for clause (i) above, any Person may be merged with or into Company or any Subsidiary of Company, and Company and/or Subsidiary of Company may amalgamate with any such Person, if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 9.3, provided that:
(a) in the case of a merger with or into Company, Company shall be the continuing or surviving Person;
(b) in the case of any other merger, if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary of Company and complies with the provisions of subsection 9.9, and
(c) no Potential Event of Default or Event of Default shall have occurred or be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenderscontinuing immediately after giving effect thereto.
Appears in 1 contract
Samples: Credit Agreement (Nacg Finance LLC)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of its Subsidiaries, create any new 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise any part of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any wholly owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any substantial 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 a BorrowerCompany or any wholly owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving corporation;
(aii) any Subsidiary of Company that is not a Borrower and its Subsidiaries may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionmake Consolidated Capital Expenditures permitted under subsection 7.6D;
(iii) Company and its Subsidiaries may acquire inventory, equipment and other assets 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; andthereof (determined in good faith by the board of directors of Company);
(ivv) Company and its Subsidiaries may make any Asset SalesSale of assets that have, providedin the aggregate, a fair market value (determined in good faith by the board of directors of Company) not in excess of 10% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior to such Asset Sale; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (determined in good faith by the board of directors of Company); (by) not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a); and
(vi) Company or any Subsidiary of Company may make acquisitions 107 of assets and businesses (including acquisitions of the capital stock or other equity interests of another Person), provided that:
(a) immediately prior to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from after giving effect to any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000such acquisition, Company and its Subsidiaries shall not be permitted in compliance with the provisions of subsection 7.11 hereof;
(b) after giving effect to consummate any such Asset Sale without acquisition, the prior written consent sum of Requisite Lenders(x) the amount of cash on hand of Company and its Subsidiaries plus (y) the amount by which the Revolving Loan Commitments exceed the Total Utilization of Revolving Loan Commitments, shall equal or exceed $40,000,000;
(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, (2) the Senior Leverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall be less than 3.75:1.00 in Fiscal Years 1998 and 1999, 3.50:1.00 in Fiscal Years 2000 and 2001, and 3.25:1.00 thereafter and (3) 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 and as to the matters referred to in subsections 7.7(vi)(a) and (b) above;
(d) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of the Administrative Agent on behalf of Lenders pursuant to the Collateral Documents; and
(e) each such acquisition shall be made on a fully consensual basis between Company and its Subsidiaries, on the one hand, and the seller or sellers of such assets or such business, on the other hand.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transaction;surviving Person; 100
(aii) any Subsidiary Company and its Subsidiaries may dispose of Company that is not a Borrower may be merged with obsolete, worn out or into any other Subsidiary of Company that is not a Borrower, or be liquidated, wound up or dissolved, or all or any part of its business, surplus property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iv) Company and its Subsidiaries may make Asset SalesSales of assets having a fair market value not in excess of $20,000,000 during any Fiscal Year, provided, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof and shall be Cash or non-Cash consideration permitted by subsection 7.3(xi); and (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a);
(fv) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) any Person may be merged with any Subsidiary of Company if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.7 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(viii) licenses or sublicenses by Company and its Subsidiaries of software, trademarks, patents and other intellectual property in the ordinary course of business and which do not be materially interfere with the business of Company or any of its Subsidiaries;
(ix) transfers of condemned property to the respective governmental authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement; and
(x) Company and its Subsidiaries may sell or otherwise dispose of Cash Equivalents permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersbe made or owned by subsection 7.3(i).
Appears in 1 contract
Samples: Credit Agreement (Urs Corp /New/)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of its Subsidiaries, or enter into any transaction of amalgamation, 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and or Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be amalgamated or merged with or into a BorrowerCompany or any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, provided that in such case Company or such wholly-owned Subsidiary Guarantor shall be the continuing or surviving Person; or all or any part of its the business, property or assets of any Subsidiary of Company may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower; provided, that no such transaction shall result in the obligee Company or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionwholly-owned Subsidiary Guarantor;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; provided;
(iii) Company and its Subsidiaries may dispose of obsolete, that worn out or surplus property in the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; andordinary course of business;
(iv) Company and its Subsidiaries may make Asset SalesSales of assets having a fair market value not in excess of $15,000,000 in the aggregate in any Fiscal Year, provided, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; , (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); cash, and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4A(iii)(a) or subsection 2.4F;
(fv) in order to resolve disputes (or to settle with non-paying account debtors) that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if and to the extent required by Applicable Law;
(vii) except for clause (i) above and clause (viii) below, any Person may be merged with or into Company or any Subsidiary of Company, and Company and/or Subsidiary of Company may amalgamate with any such Person, if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 9.3, provided that:
(a) in the case of a merger with or into Company, Company shall be the continuing or surviving Person;
(b) in the case of any other merger, if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary of Company and complies with the provisions of subsection 9.8, and
(c) no Potential Event of Default or Event of Default shall have occurred or be permitted continuing immediately after giving effect thereto;
(viii) the Amalgamation may be consummated so long as no Potential Event of Default or Event of Default shall have occurred or be continuing immediately after giving effect thereto and the resulting corporation has granted the Collateral Agent a First Priority Lien in all of its present and after-acquired property;
(ix) Holdings may purchase common Capital Stock of the Company and the Company may cancel the Series B Preferred Stock, in each case, pursuant to consummate such Asset Sale without the prior written consent of Requisite LendersContribution Agreement; and
(x) the Company may split its common Capital Stock.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise), in one transaction or a series of transactions, 109 all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower may be merged with or into a Borrower, 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 a Borrower; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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
(iv) Company and its Subsidiaries may make Asset Sales, provided, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenders.the
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or and their Subsidiaries to enter into any transaction of merger merger, amalgamation 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company (other than a Borrower) may be merged or amalgamated with or into a Company, any Borrower, any Subsidiary Guarantor or any Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to a Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor; providedprovided that, that no such transaction shall result in the obligee case of such a merger or beneficiary amalgamation, Company, such Borrower, such Subsidiary Guarantor or such Offshore Guarantor shall be the continuing or surviving Person;
(ii) Company and its Subsidiaries may sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(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 make Asset Sales of assets having an aggregate book value (at the time of disposition) not in excess of 10% of Company’s Consolidated Tangible Net Assets, calculated on a Pro Forma Basis, in any Fiscal Year and 15% of Company’s Consolidated Tangible Net Assets, calculated on a Pro Forma Basis, during the term of this Agreement; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (b) the Net Asset Sale Proceeds arising from such Asset Sales shall be applied as required under subsection 2.4;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Subsidiaries may sell accounts receivable to the extent that the proceeds of Receivables Sale Indebtedness are applied as required by subsection 2.4B(ii)(f);
(vi) Company and its Subsidiaries may make Acquisitions and Investments permitted by subsection 6.3;
(vii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any Indebtedness or Contingent Obligation of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(viii) any Person (other than Holdings or a Borrower) may be merged or amalgamated with or into Company or any Subsidiary if the Obligations) having greater recourse to assets or Persons for acquisition of the payment or collection Capital Stock of such Indebtedness Person by Company or Contingent Obligation than such obligee Subsidiary would not be prohibited pursuant to subsection 6.3; provided that (a) in the case of Company or beneficiary had immediately prior to a Borrower, Company or such transactionBorrower shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsections 5.9 and 5.10 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(aix) any Subsidiary of Company that is not (other than a Borrower Borrower) may be merged or amalgamated with or into any other Subsidiary of Company that is not (other than a Borrower, ) or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, transactions to another any other Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation Company (other than a Borrower), so long as, at the Obligations) having greater recourse to assets or Persons for the payment or collection time of such Indebtedness event, neither Subsidiary is a Subsidiary Guarantor or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionan Offshore Guarantor;
(iiix) Company and its Subsidiaries any Foreign Subsidiary organized under the laws of the UK or any member state of the European Union may sell sell, transfer or otherwise dispose of assets inventory to O-I Europe in transactions that do not constitute Asset Sales; provided, that connection with the consideration received for such assets shall be in an amount at least equal to the fair market value thereofimplementation of Company’s new European business model; and
(ivxi) Company each of Premier Glass Packaging Limited, United Glass (Properties) Limited, Key Glassworks Limited and its Subsidiaries Robsons Border Transport Limited may make Asset Sales, be wound up; provided, that (a) that, notwithstanding any of the consideration received for such assets shall be foregoing clauses or anything else in an amount at least equal this Agreement to the fair market value thereof; contrary, (bi) Xxxxx-Xxxxxxxx may not less than 90% of the consideration received (issue any new Capital Stock to any Person other than to Packaging, and (ii) Packaging may not convey, sell, transfer or otherwise dispose of any consideration consisting of Capital Stock in Xxxxx-Xxxxxxxx, other than the assumption of liabilities related security interest therein pledged to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation Collateral Agent pursuant to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersPledge Agreement.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Borrower or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case 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 (other than purchases or other acquisitions of Inventory, materials and equipment in the ordinary course of Borrower’s, or any of its Subsidiaries’ business) except:
(i) any Subsidiary of Borrower may be merged with or into a BorrowerBorrower 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 a BorrowerBorrower or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result (i) in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Borrower or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior surviving Person and (ii) in the case of such a liquidation, winding up or dissolution, all of the assets of such wholly-owned Subsidiary Guarantor are transferred to such transactionBorrower or a Subsidiary Guarantor that is wholly-owned, directly or indirectly, by Borrower or as otherwise expressly permitted under this Agreement;
(aii) any Subsidiary of Company that is not a Borrower and its Subsidiaries may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionmake Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company Borrower 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;
(iv) Company Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(v) Borrower and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $2,000,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the sole consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))applicable Collateral Documents and/or other replacement assets; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D; and
(vi) Borrower may dispose of portions of property in connection with the Expansion Project in order to complete the extent required under subsection 2.4AExpansion Project; and (f) provided that such dispositions do not impair in any material respect the event that use, operation or value of the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersExpansion Project.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into Company or any other Subsidiary of Company; provided that, (a) in the case of a Borrowermerger involving Company, Company shall be the continuing or surviving Person and (b) in the case of a merger involving a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person;
(ii) (a) any Subsidiary Guarantor 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 a Borrower; provided, that no such transaction shall result in the obligee Company or beneficiary of any Indebtedness or Contingent Obligation other Subsidiary Guarantor and (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(ab) any Subsidiary of Company that is Ruths_Second Amended and Restated Credit Agreement (2) not a Borrower Subsidiary Guarantor may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, or be liquidated, wound up or dissolved, or all Company or any part other Subsidiary 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionCompany;
(iii) Company and its Subsidiaries may enter into statutory conversions in any state of the United States; provided that the surviving entity of any conversion involving Company shall be Company and the surviving entity of any conversion involving a Subsidiary Guarantor shall be such Subsidiary Guarantor or shall become a Subsidiary Guarantor;
(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;
(ivv) Company and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(vi) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vii) Company and its Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(viii) Company and its Subsidiaries may (a) make dispositions permitted pursuant to subsection 7.9, and (b) make Asset Sales, provided, in each case provided that (a1) the consideration received for such assets shall be in the form of Cash or Cash Equivalents in an amount at least equal to the fair market value thereof; , (b2) not less than 90% the proceeds of such dispositions or other Asset Sales shall be applied as required by subsection 2.4A(iii)(a), (3) after giving effect to each such Asset Sale, on a reasonable and prudent pro forma basis (in accordance with the consideration received (other than any consideration consisting standards set forth in Article 11 of Regulation S-X under the assumption Securities Act) as determined by the chief executive officer or chief financial officer of liabilities related to such assets) in any Company, as if such Asset Sale shall had occurred on the first day of the most recent twelve-month period for which Company’s results of operations are available, Company would be cash in compliance with the covenants set forth in subsection 7.6, and (it being agreed that cash the receipt of which may by the relevant terms of such 4) for any Asset Sale be deferred more than six months after or series of related Asset Sales of assets having a fair market value exceeding $50,000,000, Company has delivered to Administrative Agent an Officer’s Certificate so stating and (A) attaching financial information and calculations in form and substance satisfactory to Administrative Agent required to confirm such statement and (B) setting forth the date proposed use of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales Sale and such other information with respect to such Excess Net Asset Sale Proceeds as Administrative Agent may reasonably request, provided that no such Officer’s Certificate or related information and calculations shall be required to be delivered to Administrative Agent in the case of any Asset Sale of a restaurant made in connection with a relocation of such restaurant within the same metropolitan area if the new relocated restaurant is open at the time of such Asset Sale; Ruths_Second Amended and Restated Credit Agreement (2)
(ix) any Person may be merged with or into any Subsidiary if the acquisition of the Capital Stock of such Person by such Subsidiary would have been permitted pursuant to subsection 7.3; provided that if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (b) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto; and
(x) Company and its Subsidiaries may sell restaurants to franchisees; provided that, in each case, (a) the consideration received for any such restaurant shall be in the form of Cash or Cash Equivalents, (b) the proceeds of such sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; 2.4A(iii)(a), and (fc) in after giving effect to each such sale, on a reasonable and prudent pro forma basis as determined by the event that chief executive officer or chief financial officer of Company, as if such sale had occurred on the Net Asset Sale Proceeds from any Asset Sale, when added to first day of the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000most recent twelve-month period for which Company’s results of operations are available, Company would be in compliance with the covenants set forth in subsection 7.6, and its Subsidiaries shall not be permitted Company has delivered to consummate Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in form and substance satisfactory to Administrative Agent required to confirm such Asset Sale without the prior written consent of Requisite Lendersstatement.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Borrower or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Subsidiary of Borrower may be merged with or into a BorrowerBorrower or any 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 a BorrowerBorrower or any Subsidiary; providedprovided that, that no such transaction shall result (a) in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger involving Borrower, Borrower shall be the continuing or Contingent Obligation than surviving Person; (b) in the case of such obligee a merger involving a Subsidiary Guarantor, the continuing or beneficiary had immediately prior to surviving Person shall be or become a Subsidiary Guarantor and comply with the provisions of subsection 6.8, and (c) in the case of liquidation, winding-up, dissolution, conveyance, sale, lease, transfer or other disposition involving a Subsidiary Guarantor, the transferee of such transactionassets shall be Borrower or a Subsidiary Guarantor;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company Borrower and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $10,000,000 in the aggregate; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90at least 75% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any each such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash and Cash Equivalents; (c) not more than 10% no Default or Event of Default shall have occurred or be continuing after giving effect thereto; and (d) if the cash aggregate fair market value of Asset Sales made pursuant to this subsection 7.6(iv), together with the aggregate consideration received by Company in acquisitions made pursuant to subsection 7.3(vi), exceeds $50,000,000 in any Fiscal Quarter, Borrower and its Subsidiaries are in Pro Forma Compliance with the financial covenants set forth in subsection 7.5;
(v) in order to resolve disputes that occur in the ordinary course of business, Borrower and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Borrower or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) any Person may be merged with or into Borrower or any Subsidiary if the acquisition of the Capital Stock of such Person by Borrower or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Borrower, Borrower shall be the continuing or surviving Person, (b) in a merger involving a Subsidiary Guarantor, the surviving Person either is or becomes a Subsidiary Guarantor and complies with the provisions of subsection 6.8 and (c) no Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(viii) Borrower or any Subsidiary may transfer the Capital Stock it owns in any such Asset Sale shall be received after Foreign Subsidiary to Borrower or any Subsidiary;
(ix) leases or subleases granted to third parties and not interfering in any material respect with the date ordinary conduct of consummation the business of Borrower or any of its Subsidiaries;
(x) non-exclusive licenses or sublicenses of Intellectual Property in the ordinary course of business and substantially consistent with past practice for terms not exceeding five years;
(xi) Borrower and its Subsidiaries may undertake any transaction permitted under subsection 6.2, 6.4A, 7.1, 7.3 or 7.8;
(xii) Borrower and its Subsidiaries may sell or otherwise dispose of specific items of equipment so long as (a) the purpose of such Asset Salesale or disposition is to acquire replacement items of like kind equipment or other equipment used or useful in the conduct of the business of Borrower or any of its Subsidiaries, and (b) the proceeds of such sale or disposition are reasonably promptly applied to the purchase price of such replacement equipment;
(xiii) transfers of condemned property to the respective Governmental Authority that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement in the ordinary conduct of the business of Borrower or any of its Subsidiaries;
(xiv) Borrower and its Subsidiaries may sell or otherwise dispose of Cash and Cash Equivalents permitted to be owned pursuant to subsection 7.3(i); and
(xv) Borrower and its Subsidiaries may issue new Capital Stock, form new Subsidiaries so long as Borrower complies with the requirements of subsection 6.8 with respect to each such formation that results in the formation of a Domestic Subsidiary, and with respect to Subsidiaries only, convert from one type of organization to another type of organization or convert from one jurisdiction of organization to another jurisdiction of organization; provided that in the case of each such conversion (a) Borrower shall promptly notify Administrative Agent of such conversion, (b) each Subsidiary Guarantor shall continue to be bound by all Loan Documents to which it is a party, (c) such conversion shall have no material adverse impact on Lenders, and (d) any Indebtedness in relation to the assets sold in any such Asset Sale no Domestic Subsidiary shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersconvert into a Foreign Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Thoratec Corp)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of its Subsidiaries, create any new 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise any part of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee case of such a merger involving Company, Company shall be the continuing or beneficiary surviving corporation, and in the case of any Indebtedness other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionsurviving corporation;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction[Intentionally Omitted];
(iii) Company and its Subsidiaries may acquire inventory, equipment and other assets 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; andthereof (determined in good faith by the board of directors of Company);
(ivv) Company and its Subsidiaries may sell the assets described on Schedule 7.7 annexed hereto; provided that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Company);
(vi) Company and its Subsidiaries may make Asset SalesSales in any single Fiscal 123 Year of assets that have, providedin the aggregate, a fair market value (determined in good faith by the board of directors of Company) not in excess of $7,500,000; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (determined in good faith by the board of directors of Company); (by) not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale therefor shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to required by subsection 2.4B(iii)(a);
(vii) Company and its Subsidiaries may acquire the extent required under stock or other equity Securities of any Person that, as a result of such acquisition, becomes a wholly-owned Subsidiary of Company or, through a newly-created Subsidiary, may acquire the business, property or assets of any Person; provided, that (q) Company shall give Administrative Agent at least 10 days' notice of the proposed transaction, and copies of the definitive documentation relating thereto, (r) any business acquired shall be made in compliance with subsection 2.4A; 7.12 and all applicable laws, (fs) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall own all of the beneficial equity interests in the business acquired (t) any business or property acquired shall be located in the United States, (u) any business or property acquired shall have positive Consolidated Adjusted EBITDA (provided that for purposes of this clause (u) the calculation of Consolidated Adjusted EBITDA shall be made solely with respect to such acquired business or property and not with respect to Company and its Subsidiaries on a consolidated basis) on a Pro Forma Basis, (v) upon the consummation of the acquisition in the case of a purchase of equity Securities, such Person shall comply with the provisions of subsection 6.9, (w) Company shall deliver an Officer's Certificate to Administrative Agent and Lenders in form and substance reasonably satisfactory to Administrative Agent, together with the related financial statements, demonstrating in reasonable detail that, after giving effect to the acquisition of such business (including any Indebtedness incurred or assumed therein)
(A) the Leverage Ratio, determined on a Pro Forma Basis for the most recently completed four Fiscal Quarters, shall be not be permitted greater than the ratio set forth in subsection 7.6C applicable at the time of such acquisition minus 0.25, and (B) that Company and its Subsidiaries are otherwise in compliance on a Pro Forma Basis, with the covenants set forth in subsection 7.6, (x) on a Pro Forma Basis, the portion of Consolidated Adjusted EBITDA attributable to consummate such Asset Sale without assets or Person being acquired, shall not exceed 25% of Consolidated Adjusted EBITDA (after giving effect to such acquisition) for the four Fiscal Quarters most recently ended, (y) after consummation of such acquisition, no Event of Default or Potential Event of Default shall exist, and (z) after consummation of such acquisition, the excess of Revolving Loan Commitments over the Total Utilization of Revolving Loan Commitments shall be no less than $7,500,000; and
(viii) Company may create new Subsidiaries; provided that, concurrently with or prior written consent to the formation of Requisite Lenderseach such Subsidiary, Company or such Subsidiary, as applicable, shall deliver each of the items and execute each of the documents required pursuant to subsection 6.9.
Appears in 1 contract
Samples: Credit Agreement (DMW Worldwide Inc)
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of its Subsidiaries, create any new 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any substantial part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryfixed assets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, or acquire by purchase or otherwise any part of the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any domestic Wholly Owned Subsidiary of Company, or be liquidated, wound up or dissolved, or all or any substantial 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 a BorrowerCompany or any domestic Wholly Owned Subsidiary of 107 Company; providedprovided that, that no such transaction shall result in the obligee case of such a merger, Company or beneficiary of any Indebtedness such Wholly Owned Subsidiary shall be the continuing or Contingent Obligation surviving corporation;
(ii) Company and its Subsidiaries may acquire inventory (other than the Obligations) having greater recourse to receivables portfolios), equipment and other assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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; andthereof (determined in good faith by the board of directors of Company);
(iv) Company and its Subsidiaries may make any Asset SalesSale of assets that have, providedin the aggregate, a fair market value (determined in good faith by the board of directors of Company) not in excess of 20% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior to such Asset Sale; provided that (ax) the consideration received for such assets shall be in an amount at least equal to the fair market value thereofthereof (determined in good faith by the board of directors of Company); (by) not less than 9080% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale therefor shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to required by subsection 2.4B(iii)(a); and
(v) Company may make acquisitions of receivables portfolios and other assets and businesses (including acquisitions of the extent required under subsection 2.4A; and capital stock of another Person), provided that:
(fa) in the event that the Net Asset Sale Proceeds from aggregate amount of all such acquisitions in any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, Fiscal Year would exceed $10,000,0005,000,000 after giving effect to any such proposed acquisition, Company and its Subsidiaries (y) the Interest Coverage Ratio (calculated on a pro forma basis giving effect to the proposed acquisition) shall not be permitted less than the ratio set forth in subsection 7.6A applicable at the time of such acquisition plus 0.25 and (z) the Leverage Ratio (calculated on a pro forma basis giving effect to consummate the proposed acquisition) shall not be greater than the ratio set forth in subsection 7.6B applicable at the time of such Asset Sale without acquisition minus 0.25.
(b) any receivables portfolio acquired shall be a Qualified Loan Portfolio;
(c) the aggregate amount expended for such acquisitions during any successive twelve-month period following the Closing Date shall not exceed $30,000,000; provided that such amount shall, in any such twelve-month period, be increased by an amount equal to the excess, if any (but in no event more than $10,000,000), of $30,000,000 over the actual amount expended for acquisitions under this clause (v) for the twelve-month period immediately preceding such twelve-month period;
(d) that portion of Consolidated EBITDA attributable to any assets so acquired, as projected by Company for the twelve-month period immediately following the date of such acquisition, shall not exceed 20% of Consolidated EBITDA for the four-Fiscal Quarter period most recently ended prior written consent to the date of Requisite Lenderssuch acquisition, and Company shall have delivered an Officer's Certificate to Co-Administrative Agents (together with supporting information therefor) to the foregoing effect; and
(e) 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.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, either (x) all or any part substantially all of its business, property or assets assets, or (including its notes or receivables and y) the Capital Stock of a any Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany or any wholly-owned 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 a BorrowerCompany or any wholly-owned Subsidiary; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary of Company that is not a Borrower Person may be merged with or into any other Subsidiary of Company that is not a Borrower, or be liquidated, wound up or dissolved, or all or any part Subsidiary if the acquisition of its business, property the Capital Stock of such Person by Company or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, such Subsidiary would have been permitted pursuant to another Subsidiary subsection 7.2; provided that is not a Borrower, provided, that no such transaction shall result (a) in the obligee case of Company, Company shall be the continuing or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and surviving Person, (b) any Immaterial Foreign if a Subsidiary may be merged with is not the surviving or into any Borrowercontinuing Person, the surviving Person becomes a Subsidiary and (c) no Potential Event of Default or Event of Default shall have occurred 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;continuing after giving effect thereto; and
(iii) Company and its Subsidiaries (A) may or may cause any Subsidiary to sell or otherwise dispose the Capital Stock 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
(iv) Company and its Subsidiaries may make Asset Sales, provided, that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the consideration received any Subsidiary (other than the Capital Stock of a Significant Subsidiary) or (B) may cause any consideration consisting of the assumption of liabilities related Subsidiary (other than a Significant Subsidiary) to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms sell all or substantially all of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersSubsidiary’s assets.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Neither Holdings nor Company shall, nor shall not, and shall not either of them permit any of their respective Subsidiaries to, alter the legal form structure of organization of Holdings, Company or any of its their respective 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 sublease (as lessor or sublessor), transfer transfer, grant licenses in respect of, or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) so long as no Potential Event of Default or Event of Default exists or would result therefrom, any Borrower Subsidiary of Company may be merged with or into Company or any Subsidiary Guarantor that is a BorrowerWholly Owned 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 or any Subsidiary Guarantor that is a BorrowerWholly Owned Subsidiary; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(aii) any Subsidiary so long as no Event of Company that is not a Borrower may be merged with Default exists or into any other Subsidiary of Company that is not a Borrowerwould result therefrom, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; providedprovided that, that other than in the case of promotional or employee discounts granted in the ordinary course of business, the consideration received for such assets shall be in an amount Company reasonably believes to be at least equal to the fair market value thereof; and;
(iviii) so long as no Event of Default exists or would result therefrom, Company and its Subsidiaries may make Asset Salessell or otherwise dispose of obsolete, providedworn out or surplus property in the ordinary course of business;
(iv) so long as no Potential Event of Default or Event of Default exists or would result therefrom, that Company and its Subsidiaries may (a) dispose of the Headquarters, (b) dispose of assets to Subsidiary Guarantors that are Wholly Owned Subsidiaries, and (c) make other Asset Sales of assets having an aggregate fair market value, for all such assets subject to Asset Sales in any Fiscal Year, not in excess of the greater of (I) $10,000,000 or (II) 5% of the fair market value of all assets of Company and its Subsidiaries, as determined by Company in good faith as of the last day of the most recently ended Fiscal Year; provided that, in the case of each of the foregoing clauses (a) - (c), (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (by) not less than 9070% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash Cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments and to the extent required by subsection 2.4B(iii)(a) or subsection 2.4D; provided, further, that the aggregate fair market value of all Intellectual Property subject to Asset Sales shall not exceed $5,000,000 in any Fiscal Year;
(v) so long as no Event of Default exists or would result therefrom, (a) in order to resolve disputes that occur in the ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes, accounts receivable, contract rights or commercial tort claims and (b) Company and its Subsidiaries may sell receivables in the ordinary course of business, on a non-recourse basis, and at a reasonable discount, for the purpose of improving the collectibility thereof; provided that the aggregate amount of receivables sold in reliance on this subclause (v) in any Fiscal Year shall not exceed 5% of the receivables of Company and its Subsidiaries as at the last day of the immediately preceding Fiscal Year;
(vi) so long as no Potential Event of Default or Event of Default exists or would result therefrom, Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) so long as no Potential Event of Default or Event of Default exists or would result therefrom, any Person (other than Company) may be merged with or into any Subsidiary if the acquisition of the Capital Stock of such Person by such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (b) no Potential Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(viii) so long as no Event of Default exists or would result therefrom, Company and its Subsidiaries may make Investments permitted under subsection 2.4A7.3;
(ix) so long as no Event of Default exists or would result therefrom, Company and its Subsidiaries may sell inventory in the ordinary course of business;
(x) so long as no Event of Default exists or would result therefrom, the disposition of cash or Cash Equivalents in the ordinary course of business;
(xi) so long as no Event of Default exists or would result therefrom, the license or sub-license of Intellectual Property in the ordinary course of business; provided that any such license which is exclusive (a) is not for a period of more than 15 years and (fb) does not provide for the payment of advances on royalties (or any similar payments) in the event that an aggregate amount, for all such payments in respect of a particular exclusive license, exceeding $5,000,000 unless the Net Asset Sale Proceeds from any Asset Sale, when added thereof are applied to the aggregate Net Asset Sale Proceeds from all prepayment of Term Loans pursuant to Section 2.4B(ii)(b);
(xii) so long as no Potential Event of Default or Event of Default exists or would result therefrom, a disposition consisting of a sublease of real property, which disposition does not result in the creation of any Lien other Asset Sales after than Liens described in clause (viii) of the Closing Datedefinition of Permitted Encumbrances;
(xiii) so long as no Potential Event of Default or Event of Default exists or would result therefrom, dispositions consisting of Restricted Junior Payments permitted by subsection 7.5;
(xiv) so long as no Potential Event of Default or Event of Default exists or would exceed $10,000,000result therefrom, dispositions of assets pursuant to sale and lease back transactions permitted pursuant to subsection 7.10; and
(xv) so long as no Potential Event of Default or Event of Default exists or would result therefrom, Company and its Subsidiaries shall not be permitted Subsidiary Guarantors may sell Foreign Intellectual Property to consummate such Asset Sale without the prior written consent of Requisite LendersForeign Subsidiaries.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers shall The Company will not, and shall will not permit their respective any of its Subsidiaries to, alter the organizational, capital or legal form structure of organization of the Company or any of 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 (including by discount or compromise)Dispose of, in one transaction or a series of transactions, all or any part of its business, property business or assets Property (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(ia) any Borrower Subsidiary of the Company may be merged with or into a Borrowerthe Company or any Wholly-Owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part of its business, property business or assets Property may be conveyed, sold, leased, transferred or otherwise disposed Disposed of, in one transaction or a series of transactions, to a Borrowerthe Company or any Wholly-Owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, the Company or Contingent Obligation than such obligee Wholly-Owned Subsidiary Guarantor, respectively, shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company and its Subsidiaries may sell or otherwise dispose 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;
(ivc) the Company and its Subsidiaries may Dispose of obsolete, worn out or surplus property in the ordinary course of business;
(d) the Company and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $4,000,000; provided that (ai) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (bii) not less than 90% of the sole consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (eiii) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to in accordance with the extent required under subsection 2.4A; and provisions of Section 8.3(a) hereof;
(fe) in order to resolve disputes that occur in the event that ordinary course of business, the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(f) the Company or a Subsidiary may sell or Dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by Applicable Law; and
(g) any Person may be merged with or into the Company or any Subsidiary if the acquisition of the Capital Stock of such Person by the Company or such Subsidiary would have been permitted pursuant to Sections 10.1, 10.2 and 10.3; provided that (i) in the case of the Company, the Company shall be the continuing or surviving Person, (ii) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Wholly-Owned Subsidiary and complies with the provisions of Sections 9.7 and 9.8 and (iii) no Default or Event of Default shall have occurred or be permitted to consummate such Asset Sale without the prior written consent of Requisite Lenderscontinuing after giving effect thereto.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Borrower or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case 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 (other than purchases or other acquisitions of Inventory, materials and equipment in the ordinary course of Borrower’s, or any of its Subsidiaries’ business) except:
(i) any Subsidiary of Borrower may be merged with or into a BorrowerBorrower 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 a BorrowerBorrower or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result (i) in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Borrower or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior surviving Person and (ii) in the case of such a liquidation, winding up or dissolution, all of the assets of such wholly-owned Subsidiary Guarantor are transferred to such transactionBorrower or a Subsidiary Guarantor that is wholly-owned, directly or indirectly, by Borrower or as otherwise expressly permitted under this Agreement;
(aii) any Subsidiary of Company that is not a Borrower and its Subsidiaries may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionmake Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) Company Borrower 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;
(iv) Company Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(v) Borrower and its Subsidiaries may make Asset Sales, provided, Sales of assets having a fair market value not in excess of $2,000,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90% of the sole consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))or other replacement assets; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D;
(vi) Borrower or the applicable Subsidiary may consummate the Grande Sale; and
(vii) Borrower may dispose of portions of property in connection with the Expansion Project in order to complete the extent required under subsection 2.4AExpansion Project; and (f) provided that such dispositions do not impair in any material respect the event that use, operation or value of the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersExpansion Project.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or any of its Subsidiaries, or and their Restricted Subsidiaries to enter into any transaction of merger merger, amalgamation 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (x) any Borrower Restricted Subsidiary of Company (other than a Borrower) may be merged or amalgamated with or into a Company, any Borrower, any Subsidiary Guarantor or any Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to a Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor; providedprovided that, that no such transaction shall result in the obligee case of such a merger or beneficiary of any Indebtedness amalgamation, Company, such Borrower, such Subsidiary Guarantor or Contingent Obligation such Offshore Guarantor shall be the continuing or surviving Person (y) a Borrower (other than Xxxxx-Xxxxxxxx) may merge with and into any other Borrower incorporated or otherwise organized in the Obligations) having greater recourse to assets same jurisdiction as the Borrower with or Persons for the payment or collection of into which such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
Borrower is merging if (a) any Subsidiary the aggregate amount of Company that is Loans of the surviving Borrower will not a Borrower may be merged with or into any other Subsidiary of Company that is not a exceed such Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; ’s revolver sublimit and (b) any Immaterial Foreign Subsidiary may the Administrative Agent determines that such merger would not be merged with or into any Borrower, or be liquidated, wound up or dissolved, or all or any part materially adverse to the interests 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionLenders;
(iiiii) Company and its Restricted Subsidiaries may sell sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales; providedSales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(iii) Company and its Restricted Subsidiaries may dispose of obsolete, that worn out, uneconomical, unmerchantable, unsaleable or surplus property in the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; andordinary course of business;
(iv) Company and its Restricted Subsidiaries may make Asset SalesSales of assets having an aggregate book value (at the time of disposition) not in excess of 15% of Company’s Consolidated Tangible Net Assets, providedcalculated on a Pro Forma Basis, in 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; thereof and (b) not less than 90% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of arising from such Asset Sales shall be applied as Mandatory Payments required under subsection 2.4; provided, however, to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from of any Asset Sale, when added Sale that are not required to be used to prepay the aggregate Loans pursuant to subsection 2.4B(ii)(a) are reinvested in the manner and in the time periods prescribed in the definition of “Net Asset Sale Proceeds Proceeds”, and if Company or such Restricted Subsidiary has complied with the provisions of subsection 5.9 with respect to any assets purchased with such reinvested proceeds, such Asset Sale shall be disregarded for purposes of calculations pursuant to this subsection 6.7(iv) (and shall otherwise be deemed to be permitted under this subsection 6.7(iv)) to the extent of the reinvested proceeds, from all other Asset Sales and after the Closing Date, would exceed $10,000,000time of compliance with subsection 5.9 with respect to the acquisition of such other property;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Restricted Subsidiaries shall may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Restricted Subsidiaries may sell accounts receivable in connection with Receivables Sale Indebtedness permitted under subsection 6.1(xiv);
(vi) Company and its Restricted Subsidiaries may make Acquisitions and Investments permitted by subsection 6.3;
(vii) Company or a Restricted Subsidiary may sell or dispose of shares of Capital Stock of any of its Restricted Subsidiaries in order to qualify members of the Governing Body of the Restricted Subsidiary if required by applicable law;
(viii) any Person (other than Holdings or a Borrower) may be merged or amalgamated with or into Company or any Restricted Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Restricted Subsidiary would not be permitted prohibited pursuant to consummate subsection 6.3; provided that (a) in the case of Company or a Borrower, Company or such Asset Sale without Borrower shall be the prior written consent of Requisite Lenders.continuing or surviving Person, (b) if
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Company and Borrowers shall not, and shall not permit their respective Subsidiaries to, alter the legal form of organization of Company or (a) any of its Subsidiaries, or and their Material Subsidiaries to enter into any transaction of merger merger, amalgamation or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or (b) any of its and their Restricted Subsidiaries to convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) (x) any Borrower Restricted Subsidiary of Company (other than a Borrower) may be merged or amalgamated with or into a Company, any Borrower, any Subsidiary Guarantor or any Offshore 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 ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, to Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor; provided that, in the case of such a merger or amalgamation, Company, such Borrower, such Subsidiary Guarantor or such Offshore Guarantor shall be the continuing or surviving Person and (y) a Borrower (other than Xxxxx-Xxxxxxxx) may merge with and into any other Borrower incorporated or otherwise organized in the same jurisdiction as the Borrower with or into which such Borrower is merging if (a) the aggregate amount of outstanding Loans of the surviving Borrower will not exceed such Borrower’s Multicurrency Revolving Sublimit and (b) Administrative Agent determines that such merger would not be materially adverse to the interests of the Lenders;
(ii) Company and its Restricted Subsidiaries may sell, lease, sublease or otherwise dispose of assets in transactions that do not constitute Asset Sales and sell inventory and other personal and real property held for resale in the ordinary course of business;
(iii) Company and its Restricted Subsidiaries may dispose of obsolete, worn out, uneconomical, unmerchantable, unsaleable or surplus property in the ordinary course of business;
(iv) Company and its Restricted Subsidiaries may make Asset Sales of assets having an aggregate book value (at the time of disposition) not in excess of 15% of Consolidated Tangible Assets in 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 (b) the Net Proceeds arising from such Asset Sales shall be applied as required under Section 4.4(c); provided, however, to the extent that no such transaction shall result the Net Proceeds of any Asset Sale that are not required to be used to prepay the Loans pursuant to Section 4.4(c) are reinvested in the obligee manner and in the time periods prescribed in Section 4.4(c), and if Company or beneficiary such Restricted Subsidiary has complied (to the extent applicable) with the provisions of Section 7.9 with respect to any assets purchased with such reinvested proceeds, such Asset Sale shall be disregarded for purposes of calculations pursuant to this Section 8.7(iv) (and shall otherwise be deemed to be permitted under this Section 8.7(iv)) to the extent of the reinvested proceeds, from and after the time of compliance with Section 7.9 with respect to the acquisition of such other property;
(v) in order to resolve disputes that occur in the ordinary course of business, Company and its Restricted Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable in accordance with past practice and Company and Restricted Subsidiaries may sell accounts receivable in connection with Receivables Sale Indebtedness permitted under Section 8.1(xiv);
(vi) Company and its Restricted Subsidiaries may make Acquisitions and Investments permitted by Section 8.3;
(vii) Company or a Restricted Subsidiary may sell or dispose of shares of Capital Stock of any Indebtedness or Contingent Obligation of its Restricted Subsidiaries in order to qualify members of the Governing Body of the Restricted Subsidiary if required by applicable law;
(viii) any Person (other than Holdings or a Borrower) may be merged or amalgamated with or into Company or any Restricted Subsidiary if the Obligations) having greater recourse to assets or Persons for acquisition of the payment or collection Capital Stock of such Indebtedness Person by Company or Contingent Obligation than such obligee Restricted Subsidiary would not be prohibited pursuant to Section 8.3; provided that (a) in the case of Company or beneficiary had immediately prior to a Borrower, Company or such transactionBorrower shall be the continuing or surviving Person, (b) if a Restricted Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Restricted Subsidiary and complies with the provisions of Sections 7.9 and 7.10 and (c) no Unmatured Event of Default or Event of Default shall have occurred or be continuing after giving effect thereto;
(aix) any Restricted Subsidiary of Company that is not (other than a Borrower Borrower) may be merged or amalgamated with or into any other Restricted Subsidiary of Company that is not (other than a Borrower, ) or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred leased or otherwise disposed ofof (including its notes or receivables and Capital Stock), in one transaction or a series of transactions, transactions to another any other Restricted Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation Company (other than a Borrower), so long as, at the Obligations) having greater recourse to assets or Persons for the payment or collection time of such Indebtedness event, neither Restricted Subsidiary is a Subsidiary Guarantor or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactionan Offshore Guarantor;
(iiix) Company and its Restricted Subsidiaries may sell lease, including subleases and assignments of leases and subleases, real or personal property in the ordinary course of business (except in connection with a sale and lease back transaction);
(xi) Company and its Restricted Subsidiaries may enter into consignment arrangements (as consignor or as consignee) or similar arrangements for the sale of goods in the ordinary course of business;
(xii) Company and its Restricted Subsidiaries may sell, transfer or otherwise dispose of assets any award, judgment or other rights related to the O-I Venezuela Proceeds;
(xiii) Company and its Restricted Subsidiaries may (y) enter into licenses or sublicenses of Intellectual Property and general intangibles in transactions that the ordinary course of business and which do not constitute Asset Sales; providedmaterially interfere with the business of such Person and (z) abandon or dispose of intellectual property or other proprietary rights of such Person that, that in the consideration received for reasonable business judgment of such assets shall be Person, is no longer practical to maintain or useful in an amount at least equal the conduct of its business;
(xiv) Company and its Restricted Subsidiaries may enter into sale and leaseback transactions permitted under Section 8.10;
(xv) Company and its Restricted Subsidiaries may make Restricted Payments permitted pursuant to Section 8.5;
(xvi) Company and its Restricted Subsidiaries may make dispositions of owned or leased vehicles in the fair market value thereofordinary course of business;
(xvii) Company and its Restricted Subsidiaries may make dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of any their respective property or assets; and
(ivxviii) Company and its Restricted Subsidiaries may make Asset Salessurrender or waive contractual rights to settle, release or surrender any contract or litigation claims in the ordinary course of business; provided, that (a) that, notwithstanding any of the consideration received for such assets shall be foregoing clauses or anything else in an amount at least equal this Agreement to the fair market value thereof; contrary, (bi) Xxxxx-Xxxxxxxx may not less than 90% of the consideration received (issue any new Capital Stock to any Person other than to Packaging, and (ii) Packaging may not convey, sell, transfer or otherwise dispose of any consideration consisting of Capital Stock in Xxxxx-Xxxxxxxx, other than the assumption of liabilities related security interest therein pledged to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation Collateral Agent pursuant to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersPledge Agreement.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary or, in the case of any Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Projectissue shares of Capital Stock), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into Company or any wholly-owned Subsidiary Guarantor that is not a BorrowerRegulated 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 a Borrower; provided, that no such transaction shall result in the obligee Company or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction;
(a) any wholly-owned Subsidiary of Company Guarantor that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 ofRegulated Subsidiary; provided that, in one transaction or a series of transactions, to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign wholly-owned Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower Guarantor shall be a the continuing or surviving entity in any such transactionPerson;
(iiiii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset SalesSales (excluding sales consisting of the Capital Stock of a Principal Subsidiary); provided, provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; andthereof and (b) the assets so sold shall not consist of any group contracts or subscriber contracts relating to group health plans of Company or any Principal Subsidiary;
(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 make Asset Sales, provided, Sales of assets (excluding Asset Sales consisting of the Capital Stock of a Principal Subsidiary) having a fair market value not in excess of $2,000,000; provided that (a) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b) not less than 90at least 80% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))cash; (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A2.4B(iii)(a) or subsection 2.4D; and (fd) the assets so sold shall not consist of any group contracts or subscriber contracts relating to group health plans of Company or any Principal Subsidiary.
(v) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Capital Stock of a Subsidiary may be sold to Company or a Subsidiary Guarantor that is not a Regulated Subsidiary;
(vii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(viii) Any Person may be merged with or into Company or any Subsidiary if the acquisition of the Capital Stock of such Person by Company or such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) in the case of Company, Company shall be the continuing or surviving Person, (b) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and subsection 6.9 and (c) no Potential Event of Default or Event of Default shall have occurred or be permitted continuing after giving effect thereto; and
(ix) Company or any Subsidiary may sell or otherwise dispose of any stock or assets of, liquidate, or discontinue any part of any business of Company or its Subsidiaries, if in Company's sole discretion, the preservation thereof is no longer desirable or in the best interests of Company or any Subsidiary, and the disposition could not reasonably be expected to consummate such Asset Sale without the prior written consent of Requisite Lendersresult in a Material Adverse Effect.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form structure of organization of Company Borrower or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case 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 (other than purchases or other acquisitions of Inventory, materials and equipment in the ordinary course of Borrower's, or any of its Subsidiary's, business) except:
(i) any Subsidiary of Borrower may be merged with or into a BorrowerBorrower 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 a BorrowerBorrower or any wholly-owned Subsidiary Guarantor; providedPROVIDED that, that no such transaction shall result (i) in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Borrower or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior surviving Person and (ii) in the case of such a liquidation, winding up or dissolution, all of the assets of such wholly-owned Subsidiary Guarantor are transferred to such transactionBorrower or a Subsidiary Guarantor that is wholly owned, directly or indirectly, by Borrower or as otherwise expressly permitted under this Agreement;
(aii) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) 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;
(iii) Borrower and its Subsidiaries may dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company Borrower and its Subsidiaries may make Asset Sales, provided, Sales to Persons who are not Affiliates of Borrower and its Subsidiaries of assets having a fair market value not in excess of $1,000,000 in 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; (b) not less than 90% of the sole consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii) or subsection 2.4D;
(v) in order to resolve disputes that occur in the extent ordinary course of business, Borrower and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(vi) Borrower or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required under by applicable law; and
(vii) Any Person may be merged with or into Borrower or any of its Subsidiaries if the acquisition of the Capital Stock of such Person by Borrower or such Subsidiary would have been permitted pursuant to subsection 2.4A7.3(ii) and 7.8; and PROVIDED that (fa) in the event that case of Borrower, Borrower shall be the Net Asset Sale Proceeds from any Asset Salecontinuing or surviving Person, when added to (b) if a Subsidiary of Borrower is not the aggregate Net Asset Sale Proceeds from all other Asset Sales surviving or continuing Person, the surviving Person becomes a Subsidiary of Borrower and complies with the provisions of subsection 6.8 and 6.9 and (c) no Potential Event of Default or Event of Default shall have occurred or be continuing after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersgiving effect thereto.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Company shall at no time create, acquire or otherwise have any direct Subsidiary other than Finance Sub. Borrowers shall not, and shall not permit their respective Subsidiaries any Restricted Subsidiary to, alter the corporate, capital or legal form structure of organization of Company Borrowers or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiaryassets, whether newly issued or outstanding) or its interests in or claims against any Project, in each case whether now owned or hereafter acquired, except:
(i) any Borrower Restricted Subsidiary of Company may be merged with or into a Borrowerany 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 a Borrowerany Wholly Owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, such Wholly Owned Subsidiary Guarantor shall be the continuing or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionsurviving corporation;
(aii) any Subsidiary Borrowers and Restricted Subsidiaries may dispose of Company that is not a Borrower may be merged with obsolete, worn out or into any other Subsidiary of Company that is not a Borrower, or be liquidated, wound up or dissolved, or all or any part of its business, surplus property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary ordinary course of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iii) Company Borrowers and its Restricted 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;
(iv) subject to subsection 6.13, Borrowers and Restricted Subsidiaries may during any Fiscal Year make Asset Sales of assets which generated revenues comprising not more than 15% of consolidated revenues of Company and its Restricted Subsidiaries may make Asset Sales, provided, for the prior 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; (b) not less than 9075% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b))Cash; and (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; 2.4B(iii)(a);
(v) Company may issue (a) common stock and (fb) in the event preferred stock, provided that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other terms of such preferred stock are approved by Requisite Lenders; 97 106
(vi) Borrowers and Restricted Subsidiaries may make Asset Sales after consisting of dispositions of assets pursuant to Use Agreements, provided that the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate proceeds of such Asset Sale without the prior written consent of Requisite LendersSales shall be applied as required pursuant to subsection 2.4B(iii)(a); and
(vii) ACSI Network Technologies, Inc. may make ACSI Network Sales.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers The Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a any Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) sales of Securities sold in the ordinary course of business;
(ii) (A) any Subsidiary of the Borrower may be merged or consolidated with or otherwise combined into the Borrower or any Wholly-Owned Subsidiary; provided that, in the case of such a Borrowermerger, consolidation or other combination, the Borrower or such other Wholly-Owned Subsidiary shall be the continuing or surviving Person, (B) any Subsidiary of the Borrower may be liquidated, wound up or dissolved, dissolved into the Borrower or any Wholly-Owned Subsidiary and (C) all or any part of its the business, property or assets of any Subsidiary of the Borrower may be conveyed, sold, leased, sub-leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower; provided, that no such transaction shall result in the obligee Borrower or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionWholly-Owned Subsidiary;
(aiii) dispositions of obsolete, used, worn out or surplus property in the ordinary course of business;
(iv) sales or dispositions of shares of Capital Stock of any of the Borrower’s Subsidiaries in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(v) any Subsidiary of Company that is not a Borrower Person may be merged or consolidated with or otherwise combined into the Borrower or any other Subsidiary if the acquisition of Company that is not a Borrower, the Capital Stock of such Person by the Borrower or be liquidated, wound up or dissolved, such Subsidiary would have been permitted pursuant to Subsection 6.3; or all or any part of its such Person’s business, property or assets may be conveyed, sold, leased, sub-leased, transferred or otherwise disposed of, in one transaction or a series of transactionstransactions to a Borrower or a Subsidiary, to another Subsidiary provided that is not a (a) in the case of the Borrower, providedthe Borrower shall be the continuing or surviving Person, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign if a Subsidiary may be merged with is not the surviving or into any Borrowercontinuing Person, the surviving Person becomes a Subsidiary and (c) no Potential Event of Default or Event of Default shall have occurred 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactioncontinuing after giving effect thereto;
(iiivi) Company sales, transfers and its Subsidiaries asset swaps in the ordinary course of business that are described in Schedule 6.7;
(vii) sale and leaseback transactions permitted under Subsection 6.9;
(viii) the lease, sub-lease, license, sublicense or other transfer of real or personal property (including Intellectual Property) in the ordinary course of business in accordance with past practices;
(ix) any Subsidiary of the Borrower may sell enter into and consummate any Chapter 100 Transactions;
(x) sales or otherwise dispose dispositions 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 thereofor Capital Stock of Xxxxxx Xxxxx Trust Co. and/or Xxxxxx Xxxxx (Ontario Limited Partnership); and
(ivxi) Company and its Subsidiaries may make Asset Salesadditional conveyances, providedsales, that leases or sub-leases (a) the consideration received for such as lessor or sublessor), transfers or other dispositions of assets shall be not otherwise permitted by this Subsection 6.7 in an amount at least equal to the any Fiscal Year of assets having a fair market value thereof; (b) not less than 90% value, as of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation any such transaction, in an aggregate amount for such Fiscal Year not to exceed ten percent (10%) of Partnership Capital as of the first day of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersFiscal Year.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, and shall not permit their respective any of its Subsidiaries to, alter the corporate, capital or legal form of organization structure of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, so long as the Term Loan remains outstanding, all or any part of its business, property or assets, and after the Term Loan has been repaid in full, all or any substantial part of its business, property or assets (in each case including its notes or receivables and Capital Stock stock or other ownership interests of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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, 135 sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a BorrowerCompany or any Wholly-Owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than -------- such obligee Wholly-Owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) 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;
(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 make Asset SalesSales of assets having a fair market value not in excess of $10,000,000 in any single transaction (or a series of related transactions) or in excess of $30,000,000 in the aggregate over the term of this Agreement; provided that in any such Asset Sale, provided, that (ax) the consideration received -------- for such assets shall be in an amount at least equal to the greater of (i) the fair market value thereof; , and (bii)(A) not less than 90% in the case of Accounts and Inventory, the aggregate value attributable to such Accounts and Inventory in determining the Revolving Borrowing Base (but without giving effect to any reduction due to advance rates or any reserves), and (B) in the case of machinery and equipment and Real Property Assets, the aggregate value attributable thereto in determining the Term Borrowing Base (but without giving effect to any reduction due to advance rates or any reserves), it being understood that in the case of Asset Sales of capital stock or other equity interests (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into stock or other equity interests) of any Person, the consideration received therefor shall be in an amount equal to the greater of (other than any consideration consisting of i) the assumption of liabilities related fair market value thereof and (ii) the aggregate value attributable to such assetsPerson's Accounts, Inventory, machinery and equipment and Real Property Assets in determining the Borrowing Base (but without giving effect to any reduction due to advance rates or any reserves), (y) in any such Asset Sale the sole consideration received shall be cash cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (ez) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments required by subsection 2.4B(iii)(a) or subsection 2.4D (each a "Permitted Disposition"); and provided further that in any -------- ------- such Asset Sale in which the consideration received exceeds $20,000, Agent shall have received an Officer's Certificate from Company to the extent required under subsection 2.4A; effect set forth in clauses (x) and (fy) in the event above and certifying that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall will comply with clause (z) above and setting forth in reasonable detail the calculations relating thereto and otherwise in form and substance satisfactory to Agent at least 5 Business Days prior to the consummation of the proposed Asset Sale;
(v) Company or a Subsidiary may sell or dispose of shares of capital stock or other equity Securities of any of its Subsidiaries, in order to qualify members of the Governing Body of the Subsidiary if required by applicable law; and
(vi) a Subsidiary of Company that is not be permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersan Active Subsidiary may liquidate, wind-up or dissolve itself.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers The Borrower shall not, and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization of Company or any of 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 (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a any Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) sales of Securities sold in the ordinary course of business;
(ii) (A) any Subsidiary of the Borrower may be merged or consolidated with or otherwise combined into the Borrower or any Wholly-Owned Subsidiary; provided that, in the case of such a Borrowermerger, consolidation or other combination, the Borrower or such other Wholly-Owned Subsidiary shall be the continuing or surviving Person, (B) any Subsidiary of the Borrower may be liquidated, wound up or dissolved, dissolved into the Borrower or any Wholly-Owned Subsidiary and (C) all or any part of its the business, property or assets of any Subsidiary of the Borrower may be conveyed, sold, leased, sub-leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Borrower; provided, that no such transaction shall result in the obligee Borrower or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transactionWholly-Owned Subsidiary;
(aiii) dispositions of obsolete, used, worn out or surplus property in the ordinary course of business;
(iv) sales or dispositions of shares of Capital Stock of any of the Borrower’s Subsidiaries in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(v) any Subsidiary of Company that is not a Borrower Person may be merged or consolidated with or otherwise combined into the Borrower or any other Subsidiary if the acquisition of Company that is not a Borrower, the Capital Stock of such Person by the Borrower or be liquidated, wound up or dissolved, such Subsidiary would have been permitted pursuant to subsection 6.3; or all or any part of its such Person’s business, property or assets may be conveyed, sold, leased, sub-leased, transferred or otherwise disposed of, in one transaction or a series of transactionstransactions to a Borrower or a Subsidiary, to another Subsidiary provided that is not a (a) in the case of the Borrower, providedthe Borrower shall be the continuing or surviving Person, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign if a Subsidiary may be merged with is not the surviving or into any Borrowercontinuing Person, the surviving Person becomes a Subsidiary and (c) no Potential Event of Default or Event of Default shall have occurred 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transactioncontinuing after giving effect thereto;
(iiivi) Company sales, transfers and its Subsidiaries asset swaps in the ordinary course of business that are described in Schedule 6.7;
(vii) sale and leaseback transactions permitted under subsection 6.9;
(viii) the lease, sub-lease, license, sublicense or other transfer of real or personal property (including Intellectual Property) in the ordinary course of business in accordance with past practices;
(ix) any Subsidiary of the Borrower may sell enter into and consummate any Chapter 100 Transactions;
(x) sales or otherwise dispose dispositions 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 thereofor Capital Stock of Xxxxxx Xxxxx Trust Co. and/or Xxxxxx Xxxxx (Ontario Limited Partnership); and
(ivxi) Company and its Subsidiaries may make Asset Salesadditional conveyances, providedsales, that leases or sub-leases (a) the consideration received for such as lessor or sublessor), transfers or other dispositions of assets shall be not otherwise permitted by this subsection 6.7 in an amount at least equal to the any Fiscal Year of assets having a fair market value thereof; (b) not less than 90% value, as of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation any such transaction, in an aggregate amount for such Fiscal Year not to exceed ten percent (10%) of Partnership Capital as of the first day of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e) the Net Asset Sale Proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under subsection 2.4A; and (f) in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000, Company and its Subsidiaries shall not be permitted to consummate such Asset Sale without the prior written consent of Requisite LendersFiscal Year.
Appears in 1 contract
Restriction on Fundamental Changes; Asset Sales. Borrowers Company shall not, not and shall not permit their respective any of its Subsidiaries to, alter the legal form of organization structure of Company or any of 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 sublease (as lessor or sublessor), transfer or otherwise dispose of (including by discount or compromise)of, in one transaction or a series of transactions, all or any part of its business, property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether newly issued or outstanding) or its interests in or claims against any Project), in each case whether now owned or hereafter acquired, except:
(i) any Borrower Subsidiary of Company may be merged with or into a BorrowerCompany 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 a BorrowerCompany or any wholly-owned Subsidiary Guarantor; providedprovided that, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection case of such Indebtedness a merger, Company or Contingent Obligation than such obligee wholly-owned Subsidiary Guarantor shall be the continuing or beneficiary had immediately prior to such transactionsurviving Person;
(a) any Subsidiary of Company that is not a Borrower may be merged with or into any other Subsidiary of Company that is not a Borrower, 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 another Subsidiary that is not a Borrower, provided, that no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction; and (b) any Immaterial Foreign Subsidiary may be merged with or into any Borrower, 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 a Borrower, provided, that (1) no such transaction shall result in the obligee or beneficiary of any Indebtedness or Contingent Obligation (other than the Obligations) of such Immaterial Foreign Subsidiary having greater recourse to assets or Persons for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such transaction and (2) the relevant Borrower shall be a surviving entity in any such transaction;
(iiiii) Company and its Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales; providedprovided that, that other than in the case of promotional or employee discounts granted in the ordinary course of business, the consideration received for such assets shall be in an amount Company reasonably believes to be at least equal to the fair market value thereof; and;
(iii) Company and its Subsidiaries may sell or otherwise dispose of obsolete, worn out or surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may (a) dispose of the Mexican Facilities and the Florida Facility and (b) make other Asset Sales, provided, Sales of assets having a fair market value not in excess of $15,000,000; provided that (a1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (b2) not less than 9070% of the consideration received (other than any consideration consisting of the assumption of liabilities related to such assets) in any such Asset Sale shall be cash Cash; and (it being agreed that cash the receipt of which may by the relevant terms of such Asset Sale be deferred more than six months after the date of consummation of such Asset Sale shall not be considered cash for purposes of this clause (b)); (c) not more than 10% of the cash consideration received by Company and its Subsidiaries in any such Asset Sale shall be received after the date of consummation of such Asset Sale; (d) any Indebtedness in relation to the assets sold in any such Asset Sale shall be repaid and the related letters of credit shall be cancelled and returned to the issuers thereof; (e3) the Net Asset Sale Proceeds proceeds of such Asset Sales shall be applied as Mandatory Payments to the extent required under by subsection 2.4A; and 2.4B(iii)(a) or subsection 2.4D;
(fv) in order to resolve disputes that occur in the event that the Net Asset Sale Proceeds from any Asset Sale, when added to the aggregate Net Asset Sale Proceeds from all other Asset Sales after the Closing Date, would exceed $10,000,000ordinary course of business, Company and its Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes, accounts receivable, contract rights or commercial tort claims;
(vi) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if required by applicable law;
(vii) any Person may be merged with or into any Subsidiary if the acquisition of the Capital Stock of such Person by such Subsidiary would have been permitted pursuant to subsection 7.3; provided that (a) if a Subsidiary is not the surviving or continuing Person, the surviving Person becomes a Subsidiary and complies with the provisions of subsection 6.8 and (b) no Potential Event of Default or Event of Default shall not have occurred or be continuing after giving effect thereto; and
(viii) Company and its Subsidiaries may make Investments permitted to consummate such Asset Sale without the prior written consent of Requisite Lendersunder subsection 7.3.
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