Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except: (i) any Subsidiary of a Borrower may be merged with or into any 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 any Borrower or any wholly owned Subsidiary Guarantor; provided that, in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation; (ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents; (iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8; (iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business; (v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a); (vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; (viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged; (ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license; (x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer); (xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor; (xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000; (xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer); (xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions; (xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings); (xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make (a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; (b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person; (c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes; (1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and (e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and (xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock; (xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and (xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii).
Appears in 1 contract
Samples: Credit Agreement (Dominos Pizza Government Services Division Inc)
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings shall notChange its name, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction of merger or merger, consolidation, reorganization, or liquidaterecapitalization, wind-up or dissolve itself reclassify its partnership interests (whether limited or suffer any liquidation general) or dissolution)membership interests, as applicable, or convey, sell, lease or sub-lease (as lessor or sublessor)assign, transfer lease, transfer, or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business, property business or assetsAssets, 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, acquired except:
(ia) any Loan Party or any Subsidiary of any Loan Party may sell or dispose of Assets in accordance with the provisions of Section 6.6 hereof;
(b) upon not less than thirty (30) days prior written notice to Lender, any Loan Party or Subsidiary of any Loan Party may change its name;
(c) any Subsidiary of a Borrower may merge with a Borrower; provided that such Borrower shall be the continuing or surviving Person in connection with such merger;
(d) any Subsidiary of a Borrower may be merged merged, amalgamated or consolidated with or into any Borrower one 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 any Borrower or any wholly owned Subsidiary Guarantor; provided that, in the case more Subsidiaries of such a merger -------- involving CompanyBorrower, Company shall be provided that (i) if any wholly-owned, directly or indirectly, Subsidiary is merging, consolidating, combining or amalgamating with or into another Subsidiary, the continuing or surviving corporationentity shall be, in the case of immediately after such merger, amalgamation, consolidation or combination, a merger involving Subsidiary Borrower wholly-owned, direct or indirect, Subsidiary, and (other than ii) if such merger, amalgamation or consolidation involves a merger of Company and Subsidiary Borrower), Subsidiary such Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(iie) any Foreign Subsidiary of Company a Loan Party (other than a Borrower) may be merged with sell or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or dispose of all or any part of its businessassets (whether as a contribution to capital, property dividend, upon voluntary liquidation or assets may be conveyedotherwise), sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that the transferee is a Loan Party (i) in whether at the case of such time or as a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent result of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xif) Borrowers may contribute cash to one any Borrower or more wholly owned Domestic Subsidiaries its Subsidiary that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries Loan Party may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii).
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Silvercrest Asset Management Group Inc.)
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings (a) The Borrower shall not, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business, property business or assetsproperty, whether now owned or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned Non-Summit Subsidiary of the Borrower other than the Company and any Hardee's Subsidiaries may merge into or acquire by purchase convey, sell, lease or otherwise transfer all or substantially all of its assets to, the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of a Borrower may be merged with or into any Borrower or any wholly other wholly-owned Non-Summit Subsidiary Guarantorof the Borrower, or be liquidatedprovided, wound up or dissolved, or all or that in any part of 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 wholly owned Subsidiary Guarantor; provided that, in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary the Borrower), Subsidiary the Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each caseany such Subsidiary merging into the Borrower shall be Solvent, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in any Solvent Person acquired by the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries a Non-Summit Subsidiary in its capacity as licensor is a Permitted Acquisition permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (hereunder other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Hardee's Subsidiaries may consummate merge with the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Non-Summit Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to the Borrower, provided, that in any such acquisitionmerger, Borrowers and their respective Subsidiaries the Borrower or such wholly-owned Subsidiary shall be in compliance the surviving corporation, (iv) with the provisions prior written consent of subsection 7.13 hereof;
the Agent and the Required Lenders, the Company and any Hardee's Subsidiaries may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other wholly-owned Non-Summit Subsidiary, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower shall be Solvent and (bv) if such acquisition is structured as a stock acquisitionany Summit Subsidiary may merge into or convey, then either sell, lease or transfer all or substantially all of its assets to, any Summit Subsidiary; provided, that in each case, (A) the Person so acquired becomes a wholly any such wholly-owned Subsidiary of either the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 and (4) no Event of Default or Potential Event of Default shall have occurred and or be continuing at the time of such acquisition or shall be caused thereby; and Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and would occur after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; andthereto or as a result thereof.
(xixb) Borrowers Borrower shall not and their respective shall not permit any of its Subsidiaries may issue capital stock to, amend its certificate of incorporation or by-laws (or other relevant formation document) in any manner adverse to the extent permitted by subsection 7.12(ii)interests of the Agent or the Lenders.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings The Borrower shall not, and shall not permit any of its Subsidiaries to, alter the corporate(a) (i) merge with any Person, capital or legal structure of Holdings or (ii) consolidate with any of its SubsidiariesPerson, or issue any capital stock or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or iii) acquire by purchase or otherwise all or substantially all of the business, property Stock or fixed assets of, or stock or other evidence Stock Equivalents of beneficial ownership of, any Person or (iv) acquire all or substantially all of the assets of any division Person or line all or substantially all of the assets constituting the business of a division, branch or other unit operation of any Person, except:
(ib) enter into any joint venture or partnership with any Person or (c) acquire or create any Subsidiary of a Borrower may be merged with or into any Borrower or any wholly owned Subsidiary Guarantorunless, or be liquidated, wound up or dissolved, or all or any part of 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 wholly owned Subsidiary Guarantor; provided that, in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to before and after giving effect to any such creation or acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 and (4) no Event of Default or Potential Event of Default shall have occurred and be continuing at and such Subsidiary is a Wholly-Owned Subsidiary of the time Borrower, the Borrower is in compliance with Section 7.11 (Additional Collateral and Guaranties) and the Investment in such Subsidiary is permitted under Section 8.3(c) (Investments). Notwithstanding the foregoing, with the consent of such acquisition or shall be caused thereby; and Holdings shall have delivered to Administrative Agent an Officer's Certificate (together with supporting information therefor), in form and substance reasonably satisfactory to the Administrative Agent, certifying as to (i) any Subsidiary of the foregoing; provided thatBorrower that is not a Subsidiary Guarantor may merge or consolidate with, notwithstanding or acquire substantially all of the foregoingassets of, any other Subsidiary of the Borrower that is also not a Subsidiary Guarantor, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge or consolidate with, or have substantially all of its assets acquired by, the Borrower or any Subsidiary Guarantor, so long as, in the event -------- that the Permitted Acquisition Cost case of the proposed acquisition is less than a merger or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition")consolidation, the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being Guarantor is the surviving corporation in survivor of such merger)merger or consolidation, and in (iii) any caseSubsidiary Guarantor may merge or consolidate with, or have substantially all of its assets acquired by, the provisions Borrower or any other Subsidiary Guarantor so long as, in the case of subsection 6.8 have been complied with in respect a merger or consolidation of the Borrower and any Subsidiary Guarantor, the Borrower is the survivor of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii)merger or consolidation.
Appears in 1 contract
Samples: Credit Agreement (WCI Steel, Inc.)
Restriction on Fundamental Changes. Asset Sales No Loan Party shall, nor shall it permit any of its Subsidiaries to (a) merge with any Person, (b) consolidate with any Person, (c) acquire all or substantially all of the Stock or Stock Equivalents of any Person, (d) acquire all or substantially all of the assets of any Person or all or substantially all of the assets constituting the business of a division, branch or other unit operation of any Person, (e) enter into any joint venture or partnership with any Person or (f) acquire or create any Subsidiary unless, after giving effect to such creation or acquisition, such Subsidiary is a Wholly-Owned Subsidiary of the Borrower, the Borrower is in compliance with Section 7.12 and --------------------------------------------------- RecapitalizationsSection 7.14 and the Investment in such Subsidiary is permitted under Section 8.3(e). ----------------- Holdings In addition, (x) any Guarantor may merge or consolidate with, or be liquidated into, the Borrower (so long as the Borrower is the surviving Person) or any Debtor, (y) the Borrower or any Debtor may acquire all or substantially all of the assets of any Guarantor or Subsidiary and (z) any Subsidiary of the Borrower may merge or consolidate with, or be liquidated into, the Borrower (so long as the Borrower is the surviving Person) or any Debtor (so long as such Debtor is the surviving Person and continues to be a Wholly-Owned Subsidiary of the Borrower). Notwithstanding the foregoing, the Borrower shall not, and nor shall not it permit any of its Subsidiaries to, alter the corporateform, capital or legal structure of Holdings or any of its Subsidiariesacquire, or issue any capital stock create or enter into (1) any transaction of merger joint venture or consolidation, partnership with any other Person (other than any partnership among the Borrower and any Debtor) or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i2) any Subsidiary of a Borrower may be merged with or into any 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 any Borrower or any wholly owned Subsidiary Guarantor; provided that, in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is not a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii)Subsidiary.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guarantee Agreement (Us Concrete Inc)
Restriction on Fundamental Changes. Asset Sales Other than in connection with the commencement of the Cases or as otherwise authorized by the Bankruptcy Court and --------------------------------------------------- Recapitalizations. ----------------- Holdings consented to by the Requisite Lenders, the Parent shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of a Borrower may be merged with or into any 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 any Borrower or any wholly owned Subsidiary Guarantor; provided that, in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to merge or consolidate with any such acquisitionPerson (provided that, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis thereof and immediately after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 and (4) thereto 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(ei) any assets acquired pursuant to such acquisition shall be subject to Wholly-Owned Restricted Subsidiary (other than a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xviiBorrower) may merge into a Borrower so long as no Event of Default such Borrower is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisitionsurviving company, (w) 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, (xii) any assets acquired pursuant to such acquisition shall be subject to Wholly-Owned Restricted Subsidiary (other than a First Priority Lien Borrower) may merge into or consolidate with any other Wholly-Owned Restricted Subsidiary (other than a Borrower) in favor of Collateral Agent on behalf of Lenders pursuant to a transaction in which the Collateral Documents, (y) if such acquisition surviving entity is structured as a stock acquisition, then either (A) the Wholly-Owned Restricted Subsidiary and no Person so acquired becomes other than a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Wholly-Owned Restricted Subsidiary of either a Borrower receives any consideration (with provided that if any party to any such Borrower or such wholly owned Subsidiary being transaction is a Loan Party, the surviving corporation in entity of such mergertransaction shall be a Loan Party), and in (iii) any case, all Restricted Subsidiary of the provisions of subsection 6.8 have been complied Parent (other than a Borrower) may merge with another Person in respect of such Person a transaction constituting an Asset Sale permitted hereunder, and (ziv) immediately prior any Person (other than the Parent or a Borrower) may merge or consolidate with or into any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary (and, if any party to such merger or consolidation is a Borrower, is a Borrower and otherwise, if any party to such merger or consolidation is a Guarantor, is a Guarantor)); or
(b) acquire or create any Subsidiary unless, after giving effect to any such acquisitionacquisition or creation, Borrowers (i) the Parent and their respective Subsidiaries shall be each Borrower is in compliance with Section 7.11 and (ii) the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent Investment in such Subsidiary is permitted by subsection 7.12(ii)under Section 8.5.
Appears in 1 contract
Samples: Superpriority Senior Secured Debtor in Possession Credit Agreement (McDermott International Inc)
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings shall not, and shall not permit Neither the Parent nor any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or shall enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, lease, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of the Parent’s or any part of its business, property such Subsidiary’s business or assetsproperty, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
except (i) any transactions permitted under Sections 6.02 or 6.06) (including the liquidation, winding up or dissolution of a Subsidiary other than the Borrower in connection with a transaction permitted under Section 6.02), (ii) a Subsidiary of a Borrower the Parent (other than the Borrower) may be merged into, liquidated into or consolidated with or into any 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, the Parent (in one transaction or a series of transactions, to any Borrower or any wholly owned Subsidiary Guarantor; provided that, in which case the case of such a merger -------- involving Company, Company Parent shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
the Parent (a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with other than the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such mergerBorrower), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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, (2iii) if at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis thereof and immediately after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 and (4) thereto no Event of Default or Potential Event of Default shall have occurred and be continuing at continuing, any Person (other than the time Parent or any of such acquisition its Subsidiaries) may merge or shall be caused thereby; and Holdings shall have delivered to Administrative Agent an Officer's Certificate consolidate with the Parent or any of its Subsidiaries (together other than the Borrower) in connection with supporting information therefor), in form and substance reasonably satisfactory to Administrative Agent, certifying as to the foregoinga Permitted Acquisition; provided that, notwithstanding that any such merger or consolidation involving the Parent must result in the Parent as the surviving entity. Notwithstanding the foregoing, in neither the event -------- that Parent nor any of its Subsidiaries shall merge, or consolidate with, or liquidate, wind-up or dissolve the Permitted Acquisition Cost of the proposed acquisition is less than Borrower, or equal to $1,000,000 (eachconvey, an "Insignificant Permitted Acquisition")lease, the provisions of subclauses (2) and (3) sell, transfer or otherwise dispose of, and the requirement to provide an Officer's Certificate pursuant toin one transaction or series of transactions, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisitionBorrower’s business or property, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii)whether now or hereafter acquired.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales Subject to Section 5.2 and --------------------------------------------------- Recapitalizations. ----------------- Holdings other than a sale in accordance with Section 2.5A.(ii)(a) and Section 6.14, the Parent Guarantor and the Borrower shall not, and nor shall not the Parent Guarantor cause or permit any Material Subsidiaries of its Subsidiaries the Parent Guarantor to, alter the corporatedirectly or indirectly, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction transaction, or series of merger related transactions, of merger, amalgamation, consolidation or consolidationcombination, or consolidate, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor)lease, sublease, transfer or otherwise dispose of, in one transaction or in a series of transactions, all or any part substantially all of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) in connection with the Acquisitions; and
(ii) any Subsidiary of a Borrower the Parent Guarantor may be merged merged, amalgamated, consolidated or combined with or into any Borrower the Parent Guarantor or any wholly wholly-owned Subsidiary Guarantor, of the Parent Guarantor or be liquidated, wound up or dissolved, or all or any part substantially all of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or in a series of transactions, to any the Parent Guarantor, the Borrower or to any wholly wholly-owned Subsidiary of the Parent Guarantor; provided provided, however, that, (A) no Potential Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) in the case of such a merger -------- involving Companymerger, Company shall be amalgamation, consolidation or combination of the continuing Parent Guarantor or surviving corporationthe Borrower, in on the case one hand, and a Subsidiary of such the Parent Guarantor that is not a merger involving Subsidiary Borrower (Guarantor, on the other than a merger of Company and Subsidiary Borrower)hand, Subsidiary the Parent Guarantor or the Borrower shall be the continuing or surviving corporation, and in (C) where one or more of the case of any other such mergerpredecessor entities is the Parent Guarantor, such wholly owned Subsidiary Guarantor shall be the continuing Borrower or another Guarantor, the surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that entity (i) in if it is the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii).Parent
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Renaissance Cosmetics Inc /De/)
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, alter the corporate, capital (a) merge or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, consolidate with any Person or any division or line of business of any Person, except:
(i) any Subsidiary of a Borrower may be merged with or into any 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 any Borrower or any wholly owned Subsidiary Guarantor; provided that, in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis thereof and immediately after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 and (4) thereto 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(ei) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to Wholly-Owned Restricted Subsidiary may merge into the Collateral Documents; and
(xvii) Parent so long as the Parent is the surviving company, (ii) any Wholly-Owned Restricted Subsidiary may merge into or consolidate with any other Wholly-Owned Restricted Subsidiary in a transaction in which the surviving entity is a Wholly-Owned Restricted Subsidiary and no Event of Default Person other than the Parent or a Wholly-Owned Restricted Subsidiary receives any consideration (provided that if any party to any such transaction is then in existencea Loan Party, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares the surviving entity of such holders' Cumulative Preferred Stock as contemplated by transaction shall be a Loan Party), (iii) any Restricted Subsidiary of the definition of Permitted Company Cumulative Preferred Stock;
Parent may merge with another Person in a transaction constituting an Asset Sale permitted hereunder, and (xviiiiv) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person (other than the Parent or the Term Borrower) may merge or consolidate with or into any division or line of business of Restricted Subsidiary (other than the Term Borrower) in a transaction in which the surviving entity is a Restricted Subsidiary (and, if any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant party to such acquisition shall be subject to merger or consolidation is a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral DocumentsSubsidiary Guarantor, (yis a Subsidiary Guarantor)) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (Bb) such Person is merged with and into either Borrower acquire or a wholly owned create any Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger)unless, and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisitionacquisition or creation, Borrowers and their respective Subsidiaries shall be (i) the Parent is in compliance with Section 7.11 and (ii) the provisions of subsection 7.13 hereof; and
Investment in such Subsidiary is permitted under Section 8.5. Notwithstanding the foregoing, the Term Borrower shall not (xixa) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii)merge or consolidate with any Person or (b) acquire or create any Subsidiary.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales Borrower will not and --------------------------------------------------- Recapitalizations. ----------------- Holdings shall not---------------------------------- will not permit its Subsidiaries directly or indirectly to: (i) unless and only to the extent required by law, and amend, modify or waive any term or provision of its articles of organization, partnership agreement, operating agreement, management agreements, articles of incorporation or certificates of designations pertaining to preferred stock or by-laws without the consent of CoBank (which consent shall not permit be unreasonably withheld), other than an amendment, modification or waiver that is solely ministerial or administrative in nature or the reincorporation of Borrower in the State of Delaware; provided, however, Borrower shall promptly give CoBank notice of any of its Subsidiaries tosuch amendment, alter the corporate, capital modification or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or waiver; (ii) enter into any transaction of merger or consolidationconsolidation or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, except (a) any Subsidiary of Borrower may be merged with or into Borrower or any wholly owned Subsidiary of Borrower provided that Borrower or such wholly owned Subsidiary of Borrower is the surviving entity and (b) Borrower or its Subsidiaries may consolidate or merge with or into any other Person or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, provided that no Default or Event of Default then exists or would result from such transaction, Borrower or such Subsidiary is the surviving or continuing entity and the consideration for each such transaction provided by Borrower (whether in the form of stock, cash or other consideration) does not exceed $50,000,000 and such consideration for all such transactions under this subclause (b) does not in the aggregate exceed $100,000,000; or (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, property or assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of a Borrower may be merged with or into any 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 any Borrower or any wholly owned Subsidiary Guarantor; provided that, in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii).. Credit Agreement/SureWest Communications
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings shall notChange its name, and shall not permit any change the nature of its business from the business conducted by Borrower and its Subsidiaries toon the Closing Date (and complementary businesses reasonably related thereto), alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction of merger or merger, consolidation, reorganization, or liquidaterecapitalization, wind-up or dissolve itself reclassify its partnership interests (whether limited or suffer any liquidation general) or dissolution)membership interests, as applicable, or convey, sell, lease or sub-lease (as lessor or sublessor)assign, transfer lease, transfer, or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business, property business or assetsAssets, 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, acquired except:
(ia) any Subsidiary of a Borrower may be merged with or into any 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 Subsidiaries may be conveyed, sold, leased, transferred or otherwise disposed of, sell Assets in one transaction or a series accordance with the provisions of transactions, to any Section 6.7 hereof;
(b) Borrower or any wholly owned Subsidiary Guarantorof its Subsidiaries may merge or consolidate with any Person; provided thatprovided, that (i) in the case of such a any merger -------- or consolidation involving CompanyBorrower, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and ; (ii) in the case of any other such mergermerger or consolidation involving a Broker-Dealer Subsidiary, the surviving entity shall be a Subsidiary which is a broker-dealer, or (iii) in the case of any merger or consolidation involving a Subsidiary of Borrower that is a Guarantor, such wholly owned Subsidiary of Borrower that is a Guarantor shall be the continuing or surviving corporation;
(iic) any Foreign Subsidiary of Company the Borrower may be merged with liquidate or into any wholly owned Foreign Subsidiary, dissolve if such liquidation or be liquidated, wound up dissolution is not materially disadvantageous to Lender and Borrower determines in good faith that such liquidation or dissolved, or all or any part dissolution is in the best 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 any wholly owned Foreign SubsidiaryBorrower; provided that (i) in the case of a liquidation or dissolution of a Guarantor, all of the proceeds of such a merger, such wholly -------- owned Foreign Subsidiary liquidation or dissolution shall be distributed to the continuing Borrower or surviving corporation another Guarantor and (ii) in each casethe case of a liquidation or dissolution of a Broker-Dealer Subsidiary, the stock all of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales liquidation or dissolution shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is distributed to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and knowanother Broker-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicableDealer Subsidiary; and
(ed) upon 30 days prior written notice to Lender, Borrower or any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective its Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii)change its name.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings (a) The Borrower shall not, and shall not permit any of its Subsidiaries other Covered Party to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction of merger or consolidationconsolidation without obtaining the prior written consent thereto of the Required Banks, unless (i) in the case of any such merger or consolidation involving (x) the Borrower, the Borrower is the surviving entity (regardless of whether a Covered Subsidiary is involved) and (y) any other Covered Subsidiary, a Covered Subsidiary is the surviving entity (which surviving entity must be a Pledged Subsidiary if a Pledged Subsidiary is involved) and (ii) in each case, the same will not result in the occurrence of a Material Default or an Event of Default. The Borrower shall not, and, except in connection with a merger or consolidation permitted in the preceding sentence, shall not permit any other Covered Subsidiary to, liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part substantially all of its business, property business or assetsproperty, whether now owned or hereafter acquired, other than to the Borrower or acquire by purchase to any Covered Subsidiary (and if involving a Pledged Subsidiary or otherwise the assets of a Covered Subsidiary, to another Pledged Subsidiary) or in connection with any sale of all or substantially all the business, property of its assets or fixed assets of, any payment or stock prepayment in full or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, except:
(i) any Subsidiary of a Borrower may be merged with or into any Borrower or any wholly owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any part monetization in full of its businessassets. Nothing in this Agreement shall limit or restrict any Covered Party to sell, property pledge, mortgage or assets may be conveyedtransfer any Excluded Asset, sold, leased, transferred or otherwise disposed of, except as set forth in one transaction or a series of transactions, to any Borrower or any wholly owned Subsidiary Guarantor; provided that, in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower (other than a merger of Company Sections 5.14 and Subsidiary Borrower), Subsidiary Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;5.15.
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either The Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger)shall not, and shall not permit any other Covered Party to, amend its articles of incorporation, bylaws, or other organizational documents such that the provisions thereof would violate Section 5. 8 or permit any action prohibited by Section 5.18 or, otherwise, in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings shall manner that would be in compliance, on a pro forma basis ---------- giving effect materially adverse to the proposed acquisition, with Banks without the covenants set forth in subsection 7.6 hereof, (2) if at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii)Required Banks’ consent.
Appears in 1 contract
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings shall notChange its name, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction of merger or merger, consolidation, reorganization, or liquidaterecapitalization, wind-up or dissolve itself reclassify its partnership interests (whether limited or suffer any liquidation general) or dissolution)membership interests, as applicable, or convey, sell, lease or sub-lease (as lessor or sublessor)assign, transfer lease, transfer, or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business, property business or assetsAssets, 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, acquired except:
(ia) any Loan Party or any Subsidiary of any Loan Party may sell or dispose of Assets in accordance with the provisions of Section 6.6 hereof;
(b) upon not less than thirty (30) days prior written notice to Lender, any Loan Party or Subsidiary of any Loan Party may change its name;
(c) any Subsidiary of a Borrower may merge with a Borrower; provided that such Borrower shall be the continuing or surviving Person in connection with such merger;
(d) any Subsidiary of a Borrower may be merged merged, amalgamated or consolidated with or into any Borrower one 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 any Borrower or any wholly owned Subsidiary Guarantor; provided that, in the case more Subsidiaries of such a merger -------- involving CompanyBorrower, Company shall be provided that (i) if any wholly-owned, directly or indirectly, Subsidiary is merging, consolidating, combining or amalgamating with or into another Subsidiary, the continuing or surviving corporationentity shall be, in the case of immediately after such merger, amalgamation, consolidation or combination, a merger involving Subsidiary Borrower wholly-owned, direct or indirect, Subsidiary, and (other than ii) if such merger, amalgamation or consolidation involves a merger of Company and Subsidiary Borrower), Subsidiary such Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(iie) any Foreign Subsidiary of Company a Loan Party (other than a Borrower) may be merged with sell or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or dispose of all or any part of its businessassets (whether as a contribution to capital, property dividend, upon voluntary liquidation or assets may be conveyedotherwise), sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that the transferee is a Loan Party (i) in whether at the case of such time or as a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent result of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xif) Borrowers may contribute cash to one any Borrower or more wholly owned Domestic Subsidiaries its Subsidiary that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries Loan Party may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii).. DB2/ 43206048.6
Appears in 1 contract
Samples: Credit Agreement (Silvercrest Asset Management Group Inc.)
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings The U.S. Borrower shall not, and shall not permit any of its Material Subsidiaries to: (i) merge or consolidate with, alter or (ii) convey, transfer, lease or otherwise dispose of (whether in one transaction or a series of transactions) all or substantially all of the corporate, capital property (whether now owned or legal structure hereafter acquired) of Holdings or any of the U.S. Borrower and its Subsidiaries, or issue any capital stock or enter into any transaction of merger or consolidationtaken as a whole, to, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or iii) convey, selltransfer, lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, of (whether in one transaction or a series of transactions, all and whether by or pursuant to merger, consolidation or any part of its businessother arrangement), any property or assets, (whether now owned or hereafter acquired) essential to the conduct of the business of the U.S. Borrower and its Subsidiaries, taken as a whole, to, any Person; provided, however, that so long as no Default shall have occurred and then be continuing 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 ofwould result therefrom, any Person may merge or any division or line of business of any Person, except:
consolidate with (iA) any Subsidiary of a Borrower, so long as such Borrower may be merged with or into is the surviving entity and (B) any Borrower or any wholly owned Subsidiary GuarantorMaterial Subsidiary; provided, or be liquidatedfurther, wound up or dissolved, or all or any part of 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 wholly owned Subsidiary Guarantor; provided that, that in the case of such a merger -------- involving Company, Company shall be the continuing or surviving corporation, in the case of such a merger involving Subsidiary Borrower clauses (other than a merger of Company A) and Subsidiary Borrower(B), Subsidiary Borrower shall be such merger or consolidation is not otherwise prohibited by this Agreement. Subject to the continuing or surviving corporationforegoing, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;
(ii) any Foreign Subsidiary of Company may be merged with or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that (i) in the case of such a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and except to the extent required underotherwise prohibited by this Agreement, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose U.S. Borrower may, directly or indirectly, sell all or a portion of obsolete, uneconomical, negligible, worn out the capital stock or surplus property other equity interests of any Subsidiary (including Intellectual Propertyby way of a merger or consolidation) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12value, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xi) Borrowers may contribute cash to one or more wholly owned Domestic Subsidiaries that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board U.S. Borrower’s board of Directors or senior management of Holdings) to all directors; provided, however, that if such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary is also a Euro Borrower or any other wholly owned Domestic Swing Loan Borrower, such Subsidiary of Company that is ceases to be a Subsidiary GuarantorEuro Borrower or Swing Loan Borrower, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect applicable, immediately prior to such transfer);
(xivsale and all Obligations of such Subsidiary in its capacity as a Euro Borrower or Swing Loan Borrower, as applicable are paid in full prior to the date of such sale. Notwithstanding the foregoing, nothing in this Section 6.04(b) Holdings shall prohibit the U.S. Borrower and its Subsidiaries may consummate from consummating the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii).
Appears in 1 contract
Samples: Credit Agreement (FMC Corp)
Restriction on Fundamental Changes. Asset Sales and --------------------------------------------------- Recapitalizations. ----------------- Holdings shall notChange its name, and shall not permit any of its Subsidiaries to, alter the corporate, capital or legal structure of Holdings or any of its Subsidiaries, or issue any capital stock or enter into any transaction of merger or merger, consolidation, reorganization, or liquidaterecapitalization, wind-up or dissolve itself reclassify its partnership interests (whether limited or suffer any liquidation general) or dissolution)membership interests, as applicable, or convey, sell, lease or sub-lease (as lessor or sublessor)assign, transfer lease, transfer, or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business, property business or assetsAssets, 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, acquired except:
(ia) any Loan Party or any Subsidiary of any Loan Party may sell or dispose of Assets in accordance with the provisions of Section 6.6 hereof;
(b) upon not less than thirty (30) days prior written notice to Lender, any Loan Party or Subsidiary of any Loan Party may change its name; DB2/ 42498508.4
(c) any Subsidiary of a Borrower may merge with a Borrower; provided that such Borrower shall be the continuing or surviving Person in connection with such merger;
(d) any Subsidiary of a Borrower may be merged merged, amalgamated or consolidated with or into any Borrower one 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 any Borrower or any wholly owned Subsidiary Guarantor; provided that, in the case more Subsidiaries of such a merger -------- involving CompanyBorrower, Company shall be provided that (i) if any wholly-owned, directly or indirectly, Subsidiary is merging, consolidating, combining or amalgamating with or into another Subsidiary, the continuing or surviving corporationentity shall be, in the case of immediately after such merger, amalgamation, consolidation or combination, a merger involving Subsidiary Borrower wholly-owned, direct or indirect, Subsidiary, and (other than ii) if such merger, amalgamation or consolidation involves a merger of Company and Subsidiary Borrower), Subsidiary such Borrower shall be the continuing or surviving corporation, and in the case of any other such merger, such wholly owned Subsidiary Guarantor shall be the continuing or surviving corporationentity;
(iie) any Foreign Subsidiary of Company a Loan Party (other than a Borrower) may be merged with sell or into any wholly owned Foreign Subsidiary, or be liquidated, wound up or dissolved, or dispose of all or any part of its businessassets (whether as a contribution to capital, property dividend, upon voluntary liquidation or assets may be conveyedotherwise), sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to any wholly owned Foreign Subsidiary; provided that the transferee is a Loan Party (i) in whether at the case of such time or as a merger, such wholly -------- owned Foreign Subsidiary shall be the continuing or surviving corporation and (ii) in each case, the stock of such wholly owned Foreign Subsidiary is pledged pursuant to, and to the extent required under, the Collateral Documents;
(iii) Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures permitted under subsection 7.8;
(iv) Borrowers and their respective Subsidiaries may dispose of obsolete, uneconomical, negligible, worn out or surplus property (including Intellectual Property) in the ordinary course of business;
(v) Borrowers and their respective Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales (including, without limitation, inventory and other assets acquired for resale to franchisees in the ordinary course of business); provided -------- that the consideration received for such assets shall be in an amount at least equal to the fair market value thereof;
(vi) subject to subsection 7.12, Borrowers and their respective Subsidiaries may make Asset Sales of assets having a fair market value not in excess of $40,000,000; provided that (x) the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof and (y) the proceeds of such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(vii) Borrowers and their respective Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(viii) Borrowers and their respective Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent result of the item of equipment so sold or exchanged;
(ix) Borrowers and their respective Subsidiaries may, in the ordinary course of business, license as licensee or licensor patents, trademarks, copyrights and know-how to or from third Persons, so long as any such license by a Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Collateral Documents (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by such Borrower or any of its Subsidiaries pursuant to the Collateral Documents in the Intellectual Property covered by such license;
(x) Borrowers and their respective Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of Borrowers may sell or otherwise transfer inventory to any Borrower for resale by such Borrower so long as the security interest granted to the Collateral Agent pursuant to the Collateral Documents in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xif) Borrowers may contribute cash to one any Borrower or more wholly owned Domestic Subsidiaries its Subsidiary that is a Subsidiary Guarantor;
(xii) Borrowers and their respective Domestic Subsidiaries may transfer assets (other than inventory) to wholly owned Foreign Subsidiaries so long as (x) the aggregate fair market value of all such assets (other than Intellectual Property) so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $5,000,000 and (y) the aggregate fair market value of all Intellectual Property so transferred (determined in good faith by the Board of Directors or senior management of Holdings) to all such Foreign Subsidiaries on and after the Closing Date does not exceed $2,500,000;
(xiii) Company and any Domestic Subsidiary of Company may transfer assets to Company, Subsidiary Borrower or any other wholly owned Domestic Subsidiary of Company that is a Subsidiary Guarantor, so long as the security interests granted to Collateral Agent of Lenders pursuant to the Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(xiv) Holdings and its Subsidiaries Loan Party may consummate the Recapitalization Transactions;
(xv) Holdings may issue (x) Holdings Common Stock and (y) Qualified Preferred Stock, so long as, with respect to each issuance thereof, Holdings receives equivalent consideration therefor (as determined in good faith by Holdings);
(xvi) either Borrower or any wholly-owned Subsidiary of a Borrower may make
(a) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof;
(b) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person;
(c) the only consideration paid in connection with such Permitted Acquisition shall consist of cash, Holdings Common Stock, Qualified Preferred Stock or Permitted Seller Notes;
(1) Holdings 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 at the time of the consummation of the proposed acquisition, the Leverage Ratio for the Test Period then most recently ended prior to the consummation of such proposed acquisition (calculated without giving effect to such proposed acquisition) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Pre-Acquisition Leverage Ratio") is less than or equal to 5.75:1.00, then such Pre- Acquisition Leverage Ratio shall be equal to or greater than the Leverage Ratio for the Test Period then most recently ended (calculated on a pro forma basis after giving effect to the proposed acquisition as provided in subsection 7.6D) (the Leverage Ratio as so calculated with respect to any such proposed acquisition, the "Post- Acquisition Leverage Ratio"), (3) if at the time of the consummation of the proposed acquisition, (x) the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition is greater than 5.75:1.00 or (y) the Post-Acquisition Leverage Ratio calculated with respect to such proposed acquisition exceeds the Pre-Acquisition Leverage Ratio calculated with respect to such proposed acquisition (any such acquisition consummated or to be consummated in reliance on this clause (3) (other than an Insignificant Permitted Acquisition), a "Restricted Permitted Acquisition"), then the Permitted Acquisition Cost of such proposed acquisition (other than an Insignificant Permitted Acquisition) , when aggregated with the Permitted Acquisition Costs of all other Restricted Permitted Acquisitions consummated after the Closing Date and prior to the consummation of such proposed acquisition, shall not exceed $35,000,000 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 Holdings 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; provided that, notwithstanding the foregoing, in the event -------- that the Permitted Acquisition Cost of the proposed acquisition is less than or equal to $1,000,000 (each, an "Insignificant Permitted Acquisition"), the provisions of subclauses (2) and (3) of, and the requirement to provide an Officer's Certificate pursuant to, this clause (d) shall not be applicable; and
(e) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents; and
(xvii) so long as no Event of Default is then in existence, Company may issue Permitted Company Cumulative Preferred Stock to holders of Cumulative Preferred Stock in exchange for shares of such holders' Cumulative Preferred Stock as contemplated by the definition of Permitted Company Cumulative Preferred Stock;
(xviii) Borrowers and their respective Subsidiaries may acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business of any Person, so long as (v) immediately prior to the making of each such acquisition, the Excess Proceeds Amount exceeds the cash amount expended as consideration in connection with such acquisition, (w) 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, (x) any assets acquired pursuant to such acquisition shall be subject to a First Priority Lien in favor of Collateral Agent on behalf of Lenders pursuant to the Collateral Documents, (y) if such acquisition is structured as a stock acquisition, then either (A) the Person so acquired becomes a wholly owned Subsidiary of either Borrower or (B) such Person is merged with and into either Borrower or a wholly owned Subsidiary of either Borrower (with such Borrower or such wholly owned Subsidiary being the surviving corporation in such merger), and in any case, all of the provisions of subsection 6.8 have been complied with in respect of such Person and (z) immediately prior to and after giving effect to any such acquisition, Borrowers and their respective Subsidiaries shall be in compliance with the provisions of subsection 7.13 hereof; and
(xix) Borrowers and their respective Subsidiaries may issue capital stock to the extent permitted by subsection 7.12(ii).
Appears in 1 contract
Samples: Credit Agreement (Silvercrest Asset Management Group Inc.)
