Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (u) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)
Appears in 5 contracts
Sources: First Lien Credit Agreement (STR Holdings LLC), First Lien Credit Agreement (STR Holdings LLC), First Lien Credit Agreement (STR Holdings (New) LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that (i) the Borrower and any Subsidiary may purchase and sell inventory assets in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (uA) any wholly owned Wholly Owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings corporation and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (wB) any wholly owned Wholly Owned Subsidiary may merge into or consolidate with any other wholly owned Wholly Owned Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Subsidiary and no person Person other than the Borrower or a wholly owned Wholly Owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party).
(b) Without the Lender’s approval, make any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 90% of which is cash, (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (iii) the Net Cash Proceeds of such Asset Sale are applied as provided in Section 2.10.
Appears in 5 contracts
Sources: Credit Agreement, Credit Agreement, Credit Agreement
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (u) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (x) the Borrower and the Subsidiaries may make Permitted Acquisitions and (y) any Inactive Subsidiary of the Borrower may be dissolved or liquidated.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (iii) the fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed (x) $10,000,000 in any fiscal year or (y) $50,000,000 in the aggregate.
Appears in 5 contracts
Sources: Second Lien Credit Agreement (STR Holdings LLC), Second Lien Credit Agreement (STR Holdings LLC), Second Lien Credit Agreement (STR Holdings LLC)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii1) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have has occurred and be is continuing or would result therefrom:
(ua) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor;
(b) the merger, (v) Holdings may merge, liquidate, reorganize consolidation or otherwise be restructured amalgamation of any Restricted Subsidiary into a newly-formed or with any Subsidiary Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party; and, in the case of each of the foregoing clauses (a) and (b), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;
(provided c) the merger, consolidation or amalgamation of any Restricted Subsidiary that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary that is not a Loan Party;
(d) any transfer of inventory among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if a Responsible Officer of the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment so long as the continuing or surviving Person will be a Subsidiary Loan Party if the merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10; or
(g) a merger or consolidation of the Borrower into a newly formed entity organized under the laws of the United States of America, any state thereof or the District of Columbia in connection with a Permitted Change of Control; provided that either the Borrower shall be the surviving entity of Person in such transaction or the Person surviving such transaction shall expressly assume, pursuant to an instrument reasonably satisfactory to the Administrative Agent, all liabilities and obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is party;
(2) any sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(c) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of the Borrower in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of the Borrower or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $40.0 million and (B) 1.25% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory or goods in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale or other disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) so long as no Event of Default exists or would result therefrom, Specified Sale and Lease-Back Transactions provided that, (x) such dispositions shall be for fair market value in a bona fide arm’s length transaction (as determined in the good faith judgment of the Borrower) and (y) the applicable Specified Sale and Lease-Back Net Proceeds thereof are applied in accordance with Section 2.08(6);
(5) Investments permitted by Section 6.04, (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition), provided, that, following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving corporation;
(6) Permitted Liens;
(7) Restricted Payments permitted by Section 6.06;
(8) the sale or discount of overdue or defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(9) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(10) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary;
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral; and
(13) sales or other dispositions by the Borrower or any Restricted Subsidiary of assets in connection with the closing or sale of a Store (including a factory Store) in the ordinary course of business of the Borrower and its Subsidiaries, which consist of leasehold interests in the premises of such Store, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such Store; provided that as to each and all such sales and closings, (A) no Event of Default shall result therefrom and (B) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction;
(14) bulk sales of other Dispositions of the inventory of a Loan Party)Party not in the ordinary course of business in connection with Store closings, at arm’s length; and
(15) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of the Borrower in good faith, of not more than $5.0 million. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than Holdings, the Borrower or any Guarantor, such Collateral will be free and clear of the Liens created by the Loan Documents, and the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower in order to evidence the foregoing, in each case, in accordance with Section 10.18.
Appears in 3 contracts
Sources: First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell Hydrocarbons and other inventory in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (ux) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (wy) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)) and (z) the Borrower and the Subsidiaries may make Permitted Business Investments in accordance with Section 6.04.
(b) Engage in any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale (x) involves the sale, transfer, lease or other disposition of Hydrocarbon Interests for consideration that consists of Hydrocarbon Interests or a combination of Hydrocarbon Interests and cash or (y) is for consideration at least 75% of which is cash, (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (iii) the fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed, in the aggregate, the greater of (A) $75,000,000 or (B) 7.5% of PV-10 Value.
Appears in 3 contracts
Sources: Credit Agreement (Atp Oil & Gas Corp), Second Lien Credit Agreement (Atp Oil & Gas Corp), Third Amended and Restated Credit Agreement (Atp Oil & Gas Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with itit (other than the Merger), or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of Polo Holdings or the Borrower or less than all the Equity Interests of any other Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) Polo Holdings, the Borrower and any other Subsidiary may purchase and sell inventory Time Share Interests in the ordinary course of business and (ii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (uw) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a newly-formed Loan Party Subsidiary in a transaction the purpose of which is to re-organize Holdings the Borrower as a corporationlimited liability company; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, Polo Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings the Borrower is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 5.12 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (wx) any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (y) any wholly owned Subsidiary of the Borrower may merge into or consolidate with any other wholly owned Subsidiary of the Borrower in a transaction in which the surviving entity is a wholly owned Subsidiary of the Borrower and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (z) the Borrower and the other Subsidiaries (other than Polo Holdings) may make Permitted Acquisitions.
(b) Sell, transfer or otherwise dispose of any asset, including any Equity Interest owned by it, or issue or permit any Subsidiary to issue any additional Equity Interests in a Subsidiary (other than directors’ qualifying shares), except:
(i) sales, transfers and dispositions by a Subsidiary to Polo Holdings, the Borrower or a Subsidiary Guarantor,
(ii) issuances by a Subsidiary of its Equity Interests to any other Subsidiary in an issuance permitted by Section 6.04(c), (iii) sales, transfers and dispositions between or among Foreign Subsidiaries,
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Sunterra Corp), First Lien Credit Agreement (Sunterra Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii1) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have has occurred and be is continuing or would result therefrom:
(ua) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor;
(i) the merger, (v) Holdings may merge, liquidate, reorganize consolidation or otherwise be restructured amalgamation of any Restricted Subsidiary into a newly-formed or with any Subsidiary Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party; and, in the case of each of the foregoing clauses (a) and (b), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;
(provided ii) the merger, consolidation or amalgamation of any Restricted Subsidiary that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary that is not a Loan Party;
(iii) any transfer of inventory among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(iv) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if a Responsible Officer of the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(v) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment so long as the continuing or surviving Person will be a Subsidiary Loan Party if the merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10; or
(vi) a merger or consolidation of the Borrower into a newly formed entity organized under the laws of the United States of America, any state thereof or the District of Columbia in connection with a Permitted Change of Control; provided that either the Borrower shall be the surviving entity of Person in such transaction or the Person surviving such transaction shall expressly assume, pursuant to an instrument reasonably satisfactory to the Administrative Agent, all liabilities and obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is party;
(2) any sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(i) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(ii) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of the Borrower in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(iii) any liabilities of the Borrower or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(A) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(B) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $40.0 million and (B) 10.25% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) Sale and Lease-Back Transactions permitted by Section 6.03;
(5) Investments permitted by Section 6.04, (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition), provided, that, following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving corporation;
(6) Permitted Liens; and
(7) Restricted Payments permitted by Section 6.06;
(8) the sale or discount of overdue or defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(9) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(10) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary;
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral;
(13) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of the Borrower in good faith, of not more than $5.0 million. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than Holdings, the Borrower or any Guarantor, such Collateral will be free and clear of the Liens created by the Loan Party)Documents, and the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower in order to evidence the foregoing, in each case, in accordance with Section 10.18.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with Neither the Borrower nor any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of Subsidiary (in one transaction or in a series of transactions) will wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of all or substantially all any part of its property or assets, except:
(a) mergers between the assets Borrower and a Subsidiary or between Subsidiaries;
(whether now owned or hereafter acquiredb) sales of inventory, marketable securities, receivables owed to a foreign subsidiary and receivables of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory from export sales, in each case in the ordinary course of business business;
(c) sales permitted pursuant to Section 6.06;
(d) subject to Section 6.03(e) below, any merger (other than as described in (a) above), consolidation, dissolution or liquidation; provided, however, that (I) immediately prior to and on a Pro Forma Basis after giving effect to such transaction no Default or Event of Default has occurred or is continuing, (ii) if such transaction involves a Person other than the Borrower and its Subsidiaries, the Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such transaction complies with the requirements set forth in this section and (iii) if such transaction involves the Borrower, the Borrower is the surviving entity;
(e) a disposition of less than substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, (i) for consideration which represents fair market value (as reasonably determined in good faith by the Borrower's Board of Directors) or, at a price determined by the time thereof Board of Directors of the Borrower to be in the best interests of the Borrower under circumstances where the Board deems a sale on terms other than fair market value to be in the best interest of the Borrower, (ii) immediately prior to and immediately on a Pro Forma Basis after giving effect thereto thereto, no Event of Default or Default shall have occurred and be continuing and (uiii) any wholly owned Subsidiary may merge into if the transaction involves consideration of $20,000,000 or more, the Administrative Agent shall promptly receive a certificate of a Financial Officer of the Borrower confirming that such transaction complies with the requirements set forth in this section; and
(f) acquisitions of an interest in any business from any Person (whether pursuant to a transaction in which the Borrower is the surviving corporationmerger, (v) Holdings may mergean acquisition of stock, liquidateassets, reorganize a business unit or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporationotherwise); provided that (1i) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (immediately prior to and on a consolidated basis) for HoldingsPro Forma Basis after giving effect thereto, the Borrower, each Subsidiary no Event of the Borrower Default or Default shall have occurred and the holders of Equity Interests in Holdings be continuing and (2ii) immediately following such transaction, Holdings is if the transaction involves consideration equal to or in compliance with all requirements excess of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders$10,000,000, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in shall promptly receive a transaction in which the surviving entity is certificate of a wholly owned Subsidiary and no person other than Financial Officer of the Borrower or a wholly owned Subsidiary receives any consideration (provided confirming that if any party to any such transaction is a Loan Party, complies with the surviving entity of such transaction shall be a Loan Party)requirements set forth in this section.
Appears in 1 contract
Sources: Competitive Advance, Revolving Credit and Guaranty Agreement (Dentsply International Inc /De/)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii1) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have has occurred and be is continuing or would result therefrom:
(ua) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor;
(b) the merger, (v) Holdings may merge, liquidate, reorganize consolidation or otherwise be restructured amalgamation of any Restricted Subsidiary into a newly-formed or with any Subsidiary Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party; and, in the case of each of the foregoing clauses (a) and (b), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;
(provided c) the merger, consolidation or amalgamation of any Restricted Subsidiary that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary that is not a Loan Party;
(d) any transfer of inventory among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if a Responsible Officer of the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; or
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment so long as the continuing or surviving Person will be a Subsidiary Loan Party if the merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10;
(2) any sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(c) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of the Borrower in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of the Borrower or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $125.0 million and (B) 1.50% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) Sale and Lease-Back Transactions permitted by Section 6.03;
(5) Investments permitted by Section 6.04, Permitted Liens, and Restricted Payments permitted by Section 6.06;
(6) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(7) Permitted Acquisitions, including any merger, consolidation or amalgamation in order to effect a Permitted Acquisition; provided that following any such merger, consolidation or amalgamation:
(a) involving the Borrower, the Borrower is the surviving corporation;
(b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents or exchanged for other assets of comparable or greater market value or usefulness to the business of the Borrower and the Restricted Subsidiaries, taken as a whole, and the Net Cash Proceeds therefrom are applied in accordance with Section 2.08(1); and
(c) involving a Foreign Subsidiary, the surviving or resulting entity is a Wholly Owned Subsidiary;
(8) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(9) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary;
(10) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(11) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral; or
(12) any sale, transfer or other disposition, in a single transaction shall or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of the Borrower in good faith, of not more than $10.0 million. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than Holdings, the Borrower or any Guarantor, such Collateral will be a free and clear of the Liens created by the Loan Party)Documents, and the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower in order to evidence the foregoing, in each case, in accordance with Section 10.18.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Neiman Marcus Group LTD Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii1) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have has occurred and be is continuing or would result therefrom:
(ua) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor;
(b) the merger, (v) Holdings may merge, liquidate, reorganize consolidation or otherwise be restructured amalgamation of any Restricted Subsidiary into a newly-formed or with any Subsidiary Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party; and, in the case of each of the foregoing clauses (a) and (b), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;
(provided c) the merger, consolidation or amalgamation of any Restricted Subsidiary that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary that is not a Loan Party;
(d) any transfer of inventory among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if a Responsible Officer of the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment so long as the continuing or surviving Person will be a Subsidiary Loan Party if the merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10; or
(g) a merger or consolidation of the Borrower into a newly formed entity organized under the laws of the United States of America, any state thereof or the District of Columbia in connection with a Permitted Change of Control; provided that either the Borrower shall be the surviving entity of Person in such transaction or the Person surviving such transaction shall expressly assume, pursuant to an instrument reasonably satisfactory to the Administrative Agent, all liabilities and obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is party;
(2) any sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(c) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of the Borrower in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of the Borrower or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $48.0 million and (B) 1.50% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory or goods in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale or other disposition of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) so long as no Event of Default exists or would result therefrom, Specified Sale and Lease-Back Transactions provided that, (x) such dispositions shall be for fair market value in a bona fide arm’s length transaction (as determined in the good faith judgment of the Borrower) and (y) the applicable Specified Sale and Lease-Back Net Proceeds thereof are applied in accordance with Section 2.08(6);
(5) Investments permitted by Section 6.04, (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition), provided, that, following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving corporation;
(6) Permitted Liens;
(7) Restricted Payments permitted by Section 6.06;
(8) the sale or discount of overdue or defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(9) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(10) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary;
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral; and
(13) sales or other dispositions by the Borrower or any Restricted Subsidiary of assets in connection with the closing or sale of a Store (including a factory Store) in the ordinary course of business of the Borrower and its Subsidiaries, which consist of leasehold interests in the premises of such Store, the equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such Store; provided that as to each and all such sales and closings, (A) no Event of Default shall result therefrom and (B) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction;
(14) bulk sales of other Dispositions of the inventory of a Loan Party)Party not in the ordinary course of business in connection with Store closings, at arm’s length; and
(15) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of the Borrower in good faith, of not more than $6.0 million. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than Holdings, the Borrower or any Guarantor, such Collateral will be free and clear of the Liens created by the Loan Documents, and the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower in order to evidence the foregoing, in each case, in accordance with Section 10.18.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge Subject to compliance with Section 6.04, merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that (i) the Borrower and any Subsidiary may purchase (subject to the limitations set forth in Section 6.10), sell or swap (or transfer to another Loan Party), inventory, Aircraft, airframes, engines and sell inventory spare parts in the ordinary course of business and (ii) the Borrower and any Subsidiary may acquire any of its offices set forth in Schedule 6.05 which as of the Closing Date are leased from the current owner, (iii) the Borrower and any Subsidiary may lease and effect transfers to third parties of Aircraft, Airframes, Engines or Spare Parts pursuant to the terms of the Aircraft Security Agreement, (iv) the Borrower may consolidate, amalgamate or merge with a successor company, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing and such successor company (uA) expressly assumes all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to an amendment to this agreement or other documents or instruments in form reasonably satisfactory to the Administrative Agent and (B) delivers to the Administrative Agent a certificate in the form required pursuant to Section 5.04(d), together with an opinion of counsel, stating that such consolidation, amalgamation, merger or transfer and such amendment, if any, comply with this Agreement and, if an amendment is required in connection with such transaction, such supplement shall comply with the applicable provisions of this Agreement and such other matters reasonably requested by the Administrative Agent, (v) any wholly owned Wholly Owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (wvi) any wholly owned Wholly Owned Subsidiary may merge into or consolidate with any other wholly owned Wholly Owned Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Subsidiary and no person Person other than the Borrower or a wholly owned Wholly Owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)) and (vii) the Borrower and the Subsidiaries may make Permitted Acquisitions.
(b) Make any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (iii) the fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph shall not exceed (i) $20,000,000 in any Fiscal Year. Upon any consolidation, amalgamation or merger of the Borrower in accordance with Section 6.05(a)(iv) the successor Person formed by such consolidation or into which the Borrower, as the case may be, is amalgamated or merged, shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement, with the same effect as if such successor Person had been named as the Borrower herein.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or liquidate or dissolve, or sell, transfer, lease lease, issue or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that for (i) sales, transfers, leases, issuances and other dispositions of assets not constituting an Asset Sale pursuant to the definition thereof and Asset Sales permitted under the terms and conditions of Section 6.05(b), (ii) the purchase and sale by the Borrower and or any Subsidiary may purchase of capacity and sell inventory energy in the ordinary course of business business, (iii) the sale or discount by the Borrower or any Subsidiary in each case without recourse and in accordance with customary practices of overdue accounts receivable arising in accordance with customary practices, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing transaction) and (iiiv) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (ux) the merger or consolidation of any wholly owned Subsidiary may merge into or with the Borrower in a transaction in which the Borrower is the surviving corporation, (vy) Holdings may merge, liquidate, reorganize the merger or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose consolidation of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the Borrower or a wholly owned Subsidiary receives any consideration consideration, or (provided that if z) the conveyance of all or substantially all of the assets of any party Subsidiary to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)Borrower.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (ia) the Borrower and any Subsidiary of the Subsidiaries may purchase and sell inventory in the ordinary course of business business, (b) the Borrower or any of the Subsidiaries may purchase brand name pharmaceutical product lines from any third party pursuant to clause (iii) of the proviso contained in the definition of "Asset Sale" in Section 1.01 pursuant 66 61 to the conditions set forth therein and (iic) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (ui) any wholly owned Wholly Owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings corporation and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (wii) any wholly owned Wholly Owned Subsidiary may merge into or consolidate with any other wholly owned Wholly Owned Subsidiary in a transaction in which the surviving entity is a wholly owned Wholly Owned Subsidiary and no person other than the Borrower or a wholly owned Wholly Owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)consideration.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (ia) the Borrower and any Subsidiary may sell Permitted Investments for cash at fair market value, (b) the Borrower and any Subsidiary may purchase and sell inventory and Vehicles in the ordinary course of business and business, (iic) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing or would result therefrom, (ui) any wholly owned Subsidiary of the Borrower may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings corporation and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (wii) any wholly owned Subsidiary of the Borrower may merge into or consolidate with any other wholly owned Subsidiary of the Borrower that is a Domestic Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary of the Borrower that is a Domestic Subsidiary and no person other than the Borrower or a wholly owned Subsidiary of the Borrower that is a Domestic Subsidiary receives any consideration and (provided that if any party d) Leasco may lease Vehicles to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)Borrower.
Appears in 1 contract
Sources: Credit Agreement (Ryder TRS Inc)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii1) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have has occurred and be is continuing or would result therefrom:
(ua) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor;
(b) the merger, (v) Holdings may merge, liquidate, reorganize consolidation or otherwise be restructured amalgamation of any Restricted Subsidiary into a newly-formed or with any Subsidiary Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party; and, in the case of each of the foregoing clauses (a) and (b), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;
(provided c) the merger, consolidation or amalgamation of any Restricted Subsidiary that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary that is not a Loan Party;
(d) any transfer of inventory among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if a Responsible Officer of the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment so long as the continuing or surviving Person will be a Subsidiary Loan Party if the merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10; or
(g) a merger or consolidation of the Borrower into a newly formed entity organized under the laws of the United States of America, any state thereof or the District of Columbia in connection with a Permitted Change of Control; provided that either the Borrower shall be the surviving entity of Person in such transaction or the Person surviving such transaction shall expressly assume, pursuant to an instrument reasonably satisfactory to the Administrative Agent, all liabilities and obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is party;
(2) any sale, transfer or other disposition if:
(a) the Net Cash Proceeds therefrom are to be applied in accordance with Section 2.08(1);
(b) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(c) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of the Borrower in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of the Borrower or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated NonCash Consideration, as determined by a Responsible Officer of the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $40.0 million and (B) 10.25% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory in the ordinary course of business, (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) Sale and Lease-Back Transactions permitted by Section 6.03;
(5) Investments permitted by Section 6.04, (including any Permitted Acquisition or merger, consolidation or amalgamation in order to effect a Permitted Acquisition), provided, that, following any such merger, consolidation or amalgamation involving the Borrower, the Borrower is the surviving corporation;
(6) Permitted Liens; and
(7) Restricted Payments permitted by Section 6.06;
(8) the sale or discount of overdue or defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(9) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(10) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary;
(11) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(12) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any Restricted Subsidiary that is not in contravention of Section 6.08; provided that to the extent the property being transferred constitutes Term Priority Collateral, such replacement property will constitute Term Priority Collateral;
(13) any sale, transfer or other disposition, in a single transaction or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of the Borrower in good faith, of not more than $5.0 million. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than Holdings, the Borrower or any Guarantor, such Collateral will be free and clear of the Liens created by the Loan Party)Documents, and the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower in order to evidence the foregoing, in each case, in accordance with Section 10.18.
Appears in 1 contract
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any part of its assets (whether now owned or hereafter acquired) ), or issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any SubsidiarySubsidiary or preferred equity interests of the Borrower (except to the extent that no cash interest or other cash payments are required in respect thereof), or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson, except that this Section 6.05 shall not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory sale of inventory, supplies, services, materials and equipment and the purchase and sale of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business and by the Borrower or any Subsidiary, (ii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary or (iii) the sale or other disposition of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing continuing, (ui) the merger or consolidation of any wholly owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporationPerson, (vii) Holdings may merge, liquidate, reorganize the merger or otherwise be restructured consolidation of any Subsidiary into a newly-formed or with any Loan Party in a transaction the purpose of which is to re-organize (other than Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration, (iii) the merger or consolidation of any Subsidiary that is not a Loan Party into or with any other Subsidiary that is not a Loan Party or (iv) the liquidation or dissolution (other than of the Borrower) or change in form of entity of any Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that if any party sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.07; provided further that the aggregate gross proceeds of any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Loan Party in reliance upon this paragraph (c) and the aggregate gross proceeds of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon paragraph (g) below by a Loan Party to a Subsidiary that is not a Loan Party shall not exceed, in any fiscal year of Holdings, the greater of (i) U.S.$1,400,000 and (ii) 3.5% of EBITDA as of the last day of the most recently ended Test Period;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Liens permitted by Section 6.02 and dividends, distributions and repurchases of Equity Interests permitted by Section 6.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases or other dispositions of assets not otherwise permitted by this Section 6.05; provided that the aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased or otherwise disposed of in reliance upon this paragraph (g) and in reliance upon the second proviso to paragraph (c) above shall not exceed, in any fiscal year of Holdings, the greater of (i) U.S.$1,400,000 and (ii) 3.5% of EBITDA as of the last day of the most recently ended Test Period;
(h) any purchase, lease, or other acquisition of assets, or any merger or consolidation, in each case in connection with a Permitted Business Acquisition permitted under Section 6.04(k), provided that following any such transaction merger or consolidation (i) involving the Borrower, the Borrower is a the surviving Person and (ii) involving any Loan PartyParty other than the Borrower, the surviving or resulting entity of such transaction shall be a Loan PartyParty that is a Wholly Owned Subsidiary;
(i) licensing and cross-licensing arrangements involving any technology or other intellectual property of the Borrower or any Subsidiary in the ordinary course of business; and
(j) abandonment, cancellation or disposition of any intellectual property of the Borrower or any Subsidiary in the ordinary course of business. Notwithstanding anything to the contrary contained in Section 6.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 6.05 (other than sales, transfers, leases or other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless such disposition is for fair market value, (ii) no sale, transfer or other disposition of assets shall be permitted by paragraph (a) (other than clause (iii) thereof) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii) no sale, transfer or other disposition of assets in excess of U.S.$500,000 shall be permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that for purposes of clauses (ii) and (iii), the amount of any secured Indebtedness or other Indebtedness of a Subsidiary that is not a Loan Party (as shown on the Borrower’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower that is assumed by the transferee of any such assets shall be deemed cash.
Appears in 1 contract
Sources: Credit Agreement (Fathom Digital Manufacturing Corp)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into into, or consolidate with or amalgamate with, any other personPerson, or permit any other person Person to merge into or consolidate with it, or sell, transfer, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned any part of its assets, or hereafter acquired) issue, sell, transfer or otherwise dispose of the Borrower or less than all the any Equity Interests of any Restricted Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other personPerson or any division, unit or business of any other Person, except that this Section 6.05 will not prohibit:
(i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business and (ii1) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have has occurred and be is continuing or would result therefrom:
(ua) the merger, consolidation or amalgamation of any wholly owned Restricted Subsidiary may merge into (or with) the Borrower in a transaction in which the Borrower is the surviving corporationsurvivor;
(b) the merger, (v) Holdings may merge, liquidate, reorganize consolidation or otherwise be restructured amalgamation of any Restricted Subsidiary into a newly-formed or with any Subsidiary Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (w) any wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a transaction in which the surviving or resulting entity is a wholly owned Subsidiary Loan Party; and, in the case of each of the foregoing clause (a) and this clause (b), no person Person other than the Borrower or a wholly owned Subsidiary Loan Party receives any consideration consideration;
(provided c) the merger, consolidation or amalgamation of any Restricted Subsidiary that if is not a Loan Party into or with any party to any such transaction other Restricted Subsidiary that is not a Loan Party;
(d) any transfer of inventory among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries and any other transfer of property or assets among the Borrower and its Restricted Subsidiaries or between Restricted Subsidiaries, in each case, in the ordinary course of business;
(e) the liquidation or dissolution or change in form of entity of any Restricted Subsidiary of the Borrower if a Responsible Officer of the Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; or
(f) the merger, consolidation or amalgamation of any Restricted Subsidiary with or into any other Person in order to effect a Permitted Investment so long as the continuing or surviving Person will be a Subsidiary Loan Party if the merging, consolidating or amalgamating Subsidiary was a Subsidiary Loan Party and which, together with each of its Subsidiaries, shall have complied with the requirements of Section 5.10;
(2) any sale, transfer or other disposition if:
(a) at least 75% of the consideration therefor is in the form of cash and Cash Equivalents; and
(b) such sale, transfer or disposition is made for fair market value (as determined by a Responsible Officer of the Borrower in good faith); provided that each of the following items will be deemed to be cash for purposes of this Section 6.05(2):
(i) any liabilities of the Borrower or the Restricted Subsidiaries (as shown on the most recent Required Financial Statements or in the notes thereto), other than liabilities that are by their terms subordinated in right of payment to the Obligations, that are assumed by the transferee with respect to the applicable disposition and for which the Borrower and the Restricted Subsidiaries have been validly released by all applicable creditors in writing;
(ii) any securities received by the Borrower or any Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable disposition; and
(iii) any Designated Non-Cash Consideration received in respect of such disposition; provided that the aggregate fair market value of all such Designated Non-Cash Consideration, as determined by a Responsible Officer of the Borrower in good faith, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is then outstanding, does not exceed the greater of (A) $125.0 million and (B) 1.50% of Consolidated Total Assets as of the date any such Designated Non-Cash Consideration is received, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(a) the purchase and sale of inventory in the ordinary course of business; (b) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business; (c) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business; or (d) the disposition of Cash Equivalents (or Investments that were Cash Equivalents when made);
(4) Sale and Lease-Back Transactions permitted by Section 6.03;
(5) Investments permitted by Section 6.04, Permitted Liens, and Restricted Payments permitted by Section 6.06;
(6) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(7) Permitted Acquisitions, including any merger, consolidation or amalgamation in order to effect a Permitted Acquisition; provided that following any such merger, consolidation or amalgamation: (a) involving the Borrower Party, the Borrower Party is the surviving entity corporation; and (b), immediately before and immediately after such transaction, the Payment Conditions are satisfied;
(8) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(9) sales, leases or other dispositions of inventory of the Borrower or any Restricted Subsidiary determined by the management of the Borrower to be no longer useful or necessary in the operation of the business of the Borrower or such Restricted Subsidiary;
(10) acquisitions and purchases made with Below Threshold Asset Sale Proceeds;
(11) to the extent allowable under Section 1031 of the Code (or comparable or successor provision), any exchange of like property (excluding any boot thereon permitted by such provision) for use in any business conducted by the Borrower or any Restricted Subsidiary that is not in contravention of Section 6.08; or
(12) any sale, transfer or other disposition, in a single transaction shall or a series of related transactions, of any asset or assets having a fair market value, as determined by a Responsible Officer of the Borrower in good faith, of not more than $10.0 million. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any Person other than Holdings, a Borrower Party or any Guarantor, such Collateral will be a free and clear of the Liens created by the Loan Party)Documents, and the Administrative Agent will take, and each Lender hereby authorizes the Administrative Agent to take, any actions reasonably requested by the Borrower in order to evidence the foregoing, in each case, in accordance with Section 10.18.
Appears in 1 contract
Sources: Revolving Credit Agreement (Neiman Marcus Group LTD Inc.)
Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the any substantial part of its assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (ia) the Borrower and any Subsidiary may sell Permitted Investments for cash at fair market value, (b) the Borrower and any Subsidiary may purchase and sell inventory and Vehicles in the ordinary course of business and (iisubject, in the case of Vehicles, to Section 6.18), (c) if at the time thereof and immediately after giving effect thereto no Default or Event of Default or Default shall have occurred and be continuing or would result therefrom, (ui) any wholly owned Subsidiary of the Borrower may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a newly-formed Loan Party in a transaction the purpose of which is to re-organize Holdings as a corporation; provided that (1) such transaction (or series of transactions) does not result in a material increase in the Tax obligations payable in cash (on a consolidated basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the holders of Equity Interests in Holdings corporation and (2) immediately following such transaction, Holdings is in compliance with all requirements of the Guarantee and Collateral Agreement and has satisfied its obligations under Section 5.11 (including the execution of any further documents, financing statements, agreements and instruments, and the taking of all other actions, that may be reasonably requested by the Required Lenders, the Administrative Agent or the Collateral Agent), (wii) any wholly owned Subsidiary of the Borrower may merge into or consolidate with any other wholly owned Subsidiary of the Borrower that is a Domestic Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary of the Borrower that is a Domestic Subsidiary and no person other than the Borrower or a wholly owned Subsidiary of the Borrower that is a Domestic Subsidiary receives any consideration and (provided that if any party d) Leasco may lease Vehicles to any such transaction is a Loan Party, the surviving entity Borrower pursuant to the terms of such transaction shall be a Loan Party)the Lease.
Appears in 1 contract
Sources: Credit Agreement (Ryder TRS Inc)